UNITED STATES DISTRICT COURT

SOUTHERN DISTRICT OF FLORIDA

CASE NO.: 1:20-cv-21887-GAYLES

COMMODITY FUTURES TRADING 

COMMISSION,

Plaintiff,

v.

DANIEL FINGERHUT, 

DIGITAL PLATINUM, INC., 

DIGITAL PLATINUM, LTD., 

HUF MEDIYA (a/k/a HOOF MEDIA), 

TAL VALARIOLA, and ITAY BARAK, 

Defendants, 

AICEL CARBONERO, 

Relief Defendant.

______________________________________/

ORDER GRANTING MOTION FOR PRELIMINARY INJUNCTION

THIS CAUSE comes before the Court on Plaintiff Commodity Futures Trading 

Commission’s (the “CFTC” or the “Commission”) Expedited Motion for Preliminary Injunction 

and Other Equitable Relief (the “Motion”) [ECF No. 11]. In its Motion, the Commission moves

for entry of a preliminary injunction against Defendants Daniel Fingerhut (“Fingerhut”), Digital 

Platinum, Inc. (“DPI”), Digital Platinum, Ltd. (“DPL”), Huf Mediya (“Huf”), Tal Valariola 

(“Valariola”), and Itay Barak (“Barak”) and Relief Defendant Aicel Carbonero (“Carbonero” or 

“Relief Defendant”) (hereinafter collectively referred to as “Defendants”) for alleged violations of 

sections of the Commodity Exchange Act (the “Act”), 7 U.S.C. §§ 1–26, and accompanying 

regulations (the “Regulation(s)”), 17 C.F.R. pts. 1–190. The Court has reviewed the Motion and 

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the record, heard oral arguments on the Motion via videoconference in August and September 

2020, and is otherwise fully advised. The Court concludes that the Commission has made a proper 

showing that Defendants, by and through their agents, principals, and control persons, violated 

core anti-fraud provisions of the Act and Regulations by operating a fraudulent solicitation scheme 

involving binary options and digital assets. Accordingly, a preliminary injunction is necessary to 

preserve the status quo pending the resolution of this litigation.

I. PROCEDURAL BACKGROUND

On May 5, 2020, the Commission filed a four-count Complaint against the Defendants. 

[ECF No. 1], amended by [ECF No. 101]. The Complaint sets forth the following allegations:

1) Count I claims Fingerhut, DPL, Valariola, and Barak violated Section 4c(b) of the Act, 

7 U.S.C. § 6c(b), and Regulation 32.4, 17 C.F.R. § 32.4 (“Options Fraud”). 

a) Section 4c(b) of the Act makes it unlawful for any person to offer to enter into, 

enter into, or confirm the execution of, any transaction involving any commodity 

regulated under the Act which is of the character of, or is commonly known to the 

trade as, inter alia, an “option”, “bid”, “offer”, “put”, or “call”, contrary to any rule, 

regulation, or order of the Commission prohibiting any such transaction or allowing 

any such transaction under such terms and conditions as the Commission shall 

prescribe. 

b) Regulation 32.4 provides that, in or in connection with an offer to enter into, the 

entry into, or the confirmation of the execution of, any commodity option 

transaction, it shall be unlawful for any person directly or indirectly: (a) to cheat or 

defraud or attempt to cheat or defraud any other person; (b) to make or cause to be 

made to any other person any false report or statement thereof or cause to be entered 

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for any person any false record thereof; or (c) to deceive or attempt to deceive any 

other person by any means whatsoever.

2) Count II alleges Fingerhut violated Section 4o(1) of the Act, 7 U.S.C. § 6o(1), which 

makes it unlawful for a Commodity Trading Advisor (“CTA”) or associated person of 

a CTA using the instrumentalities of interstate commerce directly or indirectly to: (a)

employ any device, scheme, or artifice to defraud any client or participant or 

prospective client or participant; or (b) engage in any transaction, practice, or course of 

business which operates as a fraud or deceit upon any client or participant or 

prospective client or participant (“CTA Fraud”);

3) Count III alleges Fingerhut, DPL, and DPI violated: (1) Section 6c(1) of the Act, 7 

U.S.C. § 9(1) and Regulation 180.1(a)(1)–(3), 17 C.F.R. § 180.1(a)(1)–(3) (“Swaps and 

Commodities Fraud”).

a) Section 6c(1) of the Act provides that it is unlawful for any person, directly or 

indirectly, to use or employ, or attempt to use or employ, in connection with any 

swap, or a contract of sale of any commodity in interstate commerce, any 

manipulative or deceptive device or contrivance, in contravention of such rules and 

regulations as the Commission shall prescribe.

b) Regulation 180.1(a)(1)–(3) provides, in relevant part, that it shall be unlawful for 

any person, directly or indirectly, in connection with any swap or contract of sale 

of any commodity in interstate commerce or contract for future delivery on or 

subject to the rules of any registered entity, to intentionally or recklessly: (1) use or 

employ or attempt to use or employ any manipulative device, scheme, or artifice to 

defraud; (2) make or attempt to make any untrue or misleading statement of 

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material fact or to omit to state a material fact necessary in order to make the 

statements made not untrue or misleading; or (3) engage or attempt to engage in 

any act, practice, or course of business, which operates or would operate as a fraud 

or deceit upon any person; and 

4) Count IV claims Fingerhut made false or misleading statements to the Commission in 

violation of Section 6(c)(2) of the Act, 7 U.S.C. § 9(2), which provides, in relevant part, 

that it shall be unlawful for any person to make any false or misleading statement of a 

material fact to the Commission, including any other information relating to a swap or 

a contract of sale of a commodity in interstate commerce, if the person knew or 

reasonably should have known the statement to be false or misleading. Id.

On May 6, 2020, the Commission filed the instant Motion for a preliminary injunction and

moved for the appointment of a temporary receiver. [ECF Nos. 11, 12]. Following a telephonic 

status conference on May 7, 2020, the Court appointed Melanie Damian as a temporary receiver 

(the “Temporary Receiver”) for Defendants and any affiliates or subsidiaries owned or controlled 

by Defendants, as well as all of the funds, properties, premises, accounts, income, now or hereafter 

due or owing to the Defendants, and other assets directly or indirectly owned, beneficially or 

otherwise, by the Defendants. [ECF No. 33]. On July 13, 2020, the Court granted the Commission 

a temporary statutory restraining order (“SRO”) pursuant to Section 6c(a) of the Act, 7 U.S.C. 

§ 13a-1(a)–(b), and in accordance with Federal Rule of Civil Procedure 65. [ECF Nos. 58, 129].

The Court held a multi-day evidentiary hearing on the Motion in August and September 

2020. The Commission relied on 72 Exhibits, see [ECF No. 157-1], and the testimony of six 

witnesses: (1) William Berry, a videographer who created many of the videos used by Defendants 

in their scheme; (2) Defendant Fingerhut; (3) Jay Passerino, a defendant in a related action for 

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international fraud based on overlapping facts with the instant action, Commodity Futures Trading 

Comm’n v. Atkinson et al., No. 18-CIV-23992 (S.D. Fla. Sept. 27, 2018) (“Atkinson litigation”);

(4) Joseph Patrick, the Commission investigator; (5) Relief Defendant Aicel Carbonero; and (6) 

Receiver Melanie Damian, [ECF Nos. 171, 175, 179].

II. FINDINGS OF FACT

A. The Parties

The Commission is the independent federal regulatory agency that administers and 

enforces the Act and Regulations promulgated thereunder. See 7 U.S.C. §§ 1–27. 

Defendant Fingerhut engaged in affiliate marketing as an employee of All In Publishing, 

LLC (“AIP”) from at least 2014 through 2016, primarily by creating and disseminating marketing 

material related to binary options trading systems. [ECF No. 71-1 at 14]; [ECF No. 175 at 25–27].

He subsequently worked on behalf of Valariola, Barak, DPI, DPL, and Huf (collectively, “Digital 

Platinum Defendants”) from 2016 through August 2018, where he focused on affiliate marketing 

concerning digital assets trading systems. [ECF No. 71-1 at 24–25]; [ECF No. 175 at 49–50, 67].

During that time, Fingerhut “controlled the marketing part of the business, pretty much from A to 

Z,” which included creating content, hiring and firing employees, reviewing and editing content 

created by subordinate employees, and analyzing data. [ECF No. 175 at 49–53]. As of May 22, 

2019, Fingerhut continued to work in affiliate marketing. [ECF No. 71-1 at 355].

Defendant DPL is an Israeli company with its principal place of business in Tel Aviv, 

Israel. Id. at 9; [ECF No. 175 at 42]. From at least October 2013 through at least November 2016,

DPL worked directly with United States brokers to assist AIP in marketing its binary options

campaigns. [ECF No. 71-1 at 23]; [ECF No. 175 at 31]. DPL supplied AIP with the trading systems 

used in the campaigns and made (or directed others to make) payments to AIP’s United States

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bank accounts for creating solicitations of the digital asset campaigns in the United States. [ECF 

No.71-1 at 23, 39]; [ECF No. 175 at 39–42, 188–190]. DPL is the parent company to DPI and Huf. 

[ECF No. 175 at 42–43].

Defendant DPI is a Florida corporation under the DPL umbrella with a principal place of 

business in Miami, Florida. [ECF No. 71-1 at 9]; [ECF No. 175 at 42]. Between October 2016 and 

August 2018, DPI leased office space in Florida. [ECF No. 71-1 at 25]; [ECF No. 175 at 46–47].

During that same time, Fingerhut managed DPI’s digital asset marketing in Florida on behalf of 

the Digital Platinum Defendants. [ECF No. 71-1 at 24–25]. DPI has never been registered with the 

Commission in any capacity. Id. at 9.

Defendant Huf, a Bulgarian company, is also under the DPL business umbrella. [ECF No. 

175 at 42–43]. At the direction of Defendant Valariola, Fingerhut executed a contract whereby 

Fingerhut would address invoices to Huf for work performed by DPI and DPL. Id. at 64. Beginning 

in August 2017, Huf sent payments to Fingerhut’s and DPI’s bank accounts in the United States 

as compensation for their digital asset affiliate marketing campaigns. [ECF No. 71-1 at 15, 25].

Huf has never registered with the Commission. Id. at 10.

At all relevant times, Defendants Valariola and Barak owned or controlled DPL, DPI, and 

Huf. Id. at 9–10, 24; [ECF No. 175 at 38, 43]. Between at least October 2013 and November 2016, 

Valariola and Barak, on behalf of DPL, assisted AIP with its binary options solicitations by 

providing sales videos, selecting brokers, acting as intermediary with brokers, supplying the 

marketed trading systems, tracking results of AIP’s marketing campaigns, and paying 

commissions to AIP.[ECF No. 71-1 at 23]; [ECF No. 175 at 31]. Valariola used a videographer in 

the United States to create at least two binary options marketing videos used by AIP. [ECF No. 

171 at 41]. Between at least October 2016 and August 2018, Valariola and Barak, on behalf of

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DPL, DPI, and Huf, directed, approved, and participated in the digital assets solicitation schemes, 

including delegating marketing to DPI, serving as the broker intermediary, and managing funds. 

[ECF No. 71-1 at 25]. Valariola resides in Tel Aviv, Israel, and Barak resides in Israel. Id. at 9. 

Neither Valariola nor Barak has ever registered with the Commission. Id.

B. Defendants’ Affiliate Marketing Schemes 

1. Solicitations Fraud

Throughout the relevant time period, Defendants engaged in various binary options and 

digital assets affiliate marketing campaigns.

1 The core of Defendants’ campaigns was the creation 

and use of false or misleading emails fabricated by employees of AIP or DPI, including Fingerhut. 

[ECF No. 175 at 23–24, 26–27]. DPL would direct customers who opened new trading accounts

as a result of the email solicitations to brokers who agreed to pay DPL a commission. Id. at 31. 

The brokers paid a $350–$450 commission, which Defendants shared,2 for each first-time 

customer that made a minimum deposit of $250 into their fund trading account. Id. at 37, 61. 

The content of the marketing emails was based on AIP’s and DPI’s fictitious sales videos. 

Id. at 23–24, 26–27, 59–60. The binary options and digital asset email solicitations created or 

disseminated by or on behalf of Defendants included an embedded link to the corresponding 

campaign websites. Id. at 24–26. If an email recipient clicked on a link, he or she would be 

redirected to a landing page where a sales video played automatically. Id. A customer could enter 

his or her name and email to the website to get full access to the marketing video and additional

information to sign up for access to the free marketed trading system. Id. at 23–24.

1 In this case, “affiliate marketing” means the creation and dissemination of millions of emails to prospective 

customers promoting select brokers with the goal of persuading the recipients to open and fund brokerage accounts in 

return for payment of a commission. [ECF No. 71-1 at 562, 661]; [ECF No. 175 at 22–24]. 2 AIP and DPL shared commissions from the binary options campaigns and DPL, Huf, and DPI shared commissions 

for the digital asset campaigns. See [ECF No. 71-1 at 14]; [ECF No. 175 at 61–62].

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AIP and DPI, through Fingerhut, others at AIP with Fingerhut’s knowledge, and/or 

individuals that Fingerhut supervised at DPI, used “autoresponders” to send out solicitation emails 

marketing trading systems to thousands of recipients per day at both AIP and DPI. Id. at 24. One 

of Fingerhut’s duties was to set up autoresponders for AIP’s and DPI’s email spamming. [ECF 

No. 71-1 at 582]. When someone visited the website landing page and filled-out the form giving 

his/her name and email, “an auto respond or [], an email service provider would collect that data 

and it would go into a list and from there you were able to market to those email addresses via 

email marketing in mass quantities.” [ECF No. 175 at 23–24]. Defendants used this information 

to send targeted follow-up emails with false or misleading information to prospective customers 

who failed to immediately open or fund an account. See [ECF No. 71-1 at 492].

Between June 2014 and October 2016, Fingerhut worked on behalf of AIP and conducted 

at least 20 binary options campaigns where he knowingly created and/or disseminated millions of 

fraudulent solicitations that advised prospective customers to trade with a “recommended broker” 

using fool-proof Trading Systems that automatically traded for the prospective customer in binary 

options involving foreign exchange currency pairings, metals, and other assets. Id. at 14, 22. DPL, 

through Valariola and Barak, willfully aided and abetted Fingerhut’s and AIP’s binary options 

fraud for at least 24 campaigns. Id. at 19, 23; [ECF No. 171 at 41].

2. Binary Options Fraud

The binary options fraud occurred between October 2013 and November 2016 (the “Binary 

Options Period”) through AIP. All of AIP’s and DPL’s binary options campaigns, including the 

20 campaigns that Fingerhut worked on, involved solicitation emails and sales videos posted on 

websites rife with materially false or misleading statements about the advertised trading systems. 

See [ECF No. 71-1 at 23–24, 26]; [ECF No. 175 at 57–60]. The emails and videos included madeCase 1:20-cv-21887-DPG Document 199 Entered on FLSD Docket 01/07/2021 Page 8 of 34
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up statements from fictional users and fake trading performance, fake accounts, and fabricated 

profits depicted as real. See [ECF No. 71-1 at 23–24, 26]; [ECF No. 175 at 57–60]. Fingerhut knew 

that the email solicitations he and his colleagues created for AIP’s binary options campaigns 

included false statements. [ECF No. 71-1 at 429–30].

Each of AIP’s binary options campaigns featured at least one sales video that depicted a 

fictional story about users’ results with the relevant trading system. For example, the solicitation 

video entitled “Free Money System,” included fake testimonials and false reports that customers 

made hundreds in profits in seconds, thousands in a day, and became millionaires in a few months. 

See, e.g., id. at 45–46. The individuals portrayed were actors reading from a script about trading 

results, risk of loss, and profits earned. [ECF No. 171 at 45]; [ECF No. 175 at 33]. The sales videos 

typically included props like luxury vehicles, private jets, and mansions, which were not owned or 

purchased by any purported user of the advertised trading system but in fact were often rented for 

the video. [ECF No. 171 at 44–45]; [ECF No. 175 at 33]. The videos were intended to create a 

narrative that the person using the software made a lot of money and had created a luxurious

lifestyle for themselves. [ECF No. 171 at 44–45]; [ECF No. 175 at 33].

The videos also included fake testimonials where fictional users would show fake trading 

performance, fake accounts, and fabricated profits. See [ECF No. 71-1 at 19]; [ECF No. 171 at 

46–47]. Defendants took screenshots of the fake bank or trading account statements and referred 

to the screenshots as “proof shots.” [ECF No. 171 at 64]. AIP’s sales videos not only portrayed 

fictional customers’ fake profits, but they also guaranteed those profits. E.g., [ECF No. 71-1 at 

20]. Valariola and Barak knew the information in the sales videos were fictitious. Id. at 24. Further, 

DPL, through Valariola, supplied AIP with at least two sales videos used in two marketing 

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campaigns, the “Golden Goose” and “Copy Op” campaigns—each of which included materially 

false or misleading statements or omissions. [ECF No. 171 at 41].

As a result of the Defendants’ efforts, AIP sent fraudulent solicitations to millions of 

recipients during the Binary Options Period. [ECF No. 175 at 24]. At least 51,917 recipients 

opened and funded forex and metals binary options trading accounts with at least $12,979,250 in 

initial deposits from campaigns that DPL participated in; at least 42,945 of those customers joined 

while Fingerhut worked on behalf of AIP. [ECF No. 71-1 at 14]. AIP received over $27 million 

related to its binary options activities, at least $17,300,780.50 of which came from DPL. Id. at 13. 

Between June 2014 and October 2016, Fingerhut earned at least $154,956 from AIP. Id. at 10–11. 

C. Defendants’ Digital Marketing Schemes 

From October 2016 to August 2018 (the “Digital Assets Period”), Fingerhut, Valariola, 

and Barak, on behalf of DPL, DPI, and Huf, engaged in a similar fraudulent solicitation scheme 

involving digital assets. Beginning in October 2016, Fingerhut left AIP and went to work with 

DPL and DPI to manage their digital asset campaigns from Florida. Id. at 24–25. Fingerhut, and 

others that he recruited, hired, trained, and supervised in Miami, Florida, created and disseminated 

fraudulent solicitations for DPL’s digital assets campaigns. Id. at 26–27.

The email solicitations created and disseminated in the digital assets campaigns were 

similar to those in the binary options campaigns: they included fictitious profits and performance 

results to lure prospective customers to open accounts and trade digital assets or digital asset 

options (swaps) with recommended brokers that agreed to pay Defendants commissions. Id. at 26. 

The digital asset campaigns included fake limits on how many people could take advantage of an 

offer and fictitious profit and risk guarantees. For example, in or around December 2017, Fingerhut 

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(or others he supervised) created and disseminated the following email solicitations for the Digital 

Platinum Defendants’ Bitcoin campaigns: 

• “Had you started using our system just one month ago you’d be sitting on a 

minimum of $400,000 in profit. Isn’t it amazing.” Id. at 429.

• “Obviously, Bitcoin is volatile, so there’s plenty of risk. But thanks to our 

revolutionary system, you can profit with bitcoin with zero risk.” Id. at 432–433. 

• “I would take action fast as this new members’ group is limited only to a hundred 

new members who want too [sic] fast track their success.” Id. at 435–437.

• “As of right now our system has created 2903 first time millionaires in 2017 with 

nine more members about five days away from hitting the millionaire mark! . . . 

Recently we reopened the enrollment and everyone who joins in 2017 we can 

guarantee you’ll become a millionaire in 2018.” Id. at 439–440.

Fingerhut knew the above statements were false but effective in misleading prospective customers 

to open and fund accounts after receiving his emails. He even told his close friend and business 

colleague Passerino, “my content is proven to convert no matter the niche.” Id. at 459. Moreover, 

Fingerhut and his team created fake names to appear as the sender to prevent recipients from 

discovering the identity of the senders. Id. at 412.

Digital Platinum Defendants’ digital asset campaign websites all included a sales video 

that automatically streamed upon opening just like AIP’s binary options campaigns. [ECF No. 175 

at 49]. In a similar fashion, these videos also included false and misleading statements. By way of 

example, Digital Platinum Defendants’ “Ethereum Code” campaign website included the 

following materially false and misleading statements:

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• “Each member inside The Ethereum Code earns well above that [$10,000] every 

single week . . . .” [ECF No. 71-1 at 288].

• “This is only for SERIOUS investors who want to make a guaranteed $10,000 a 

week.” Id. at 287.

• “It’s a small group of everyday people who make a killing online working from 

home . . . and they do it by using an incredibly robust software I developed that 

automatically generates profits from trading Ethereum.” Id. at 290.

The other sales videos used by the Digital Platinum Defendants during the Digital Assets Period

mirrored the Ethereum Code sales video. [ECF No. 175 at 59].

During the Digital Assets Period, Fingerhut and his team sent millions of fraudulent digital 

asset solicitations for the Digital Platinum Defendants. [ECF No. 71-1 at 25–26, 30]. Defendants 

caused at least 8,043 people to open and fund new digital asset trading accounts as a result of the 

solicitations for a total of $2,010,750 in initial deposits. Id. at 15, 27. Between October 2016 and 

August 2018, DPI received at least $3,619,391.31 in payments from its digital assets affiliate 

marketing activities, primarily from Huf. Id. at 14. During that time, Fingerhut invoiced the Digital 

Platinum Defendants for his affiliate marketing services and received at least $360,269.98 in his 

United States bank accounts. Id. at 13.

D. Fingerhut’s False and Misleading Statements to the Commission

Between August 2018 and May 2019, Fingerhut made materially false or misleading 

statements to the Commission to disguise his role in the fraudulent schemes and prevent the 

Commission from discovering relevant evidence before he could destroy it. 

First, in August and September 2018, Fingerhut falsely told the Commission that the only 

email account he used to conduct business while working with DPI and DPL was 

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dan@digitalplatinum.com. Id. at 29; [ECF No. 179 at 18]. Similarly, at a deposition in May 2019,

Fingerhut falsely testified to the same until confronted with contradictory evidence. Compare 

[ECF No. 71-1 at 357], with [ECF No. 71-1 at 367–68]. However, the truth of the matter is that 

Fingerhut regularly used two other email accounts to conduct DPI and DPL’s business: 

danhutbiz@gmail.com and dhut3@hotmail.com. [ECF No. 175 at 52]; [ECF No. 179 at 19–20].

After speaking with the Commission and receiving “do not destroy” letters and subpoenas from 

the Commission, Fingerhut deleted the danhutbiz@gmail.com and dhut3@hotmail.com email 

accounts used to conduct the binary options and digital assets solicitations fraud. [ECF No. 71-1 

at 31]; [ECF No. 179 at 20–21]. As to the Hotmail account, Fingerhut produced a handful of 

emails, of which only a small sub-set were responsive to the Commission’s subpoenas. See [ECF 

No. 71-1 at 296–339]. Fingerhut failed to produce any emails from the Gmail account. 

Nevertheless, Fingerhut repeatedly falsely testified at his deposition that he did not delete or 

destroy any documents or communications that would be responsive to the Commission’s 

subpoenas. E.g., id. at 360.

Second, Fingerhut made false statements about his role and involvement in the fraudulent 

schemes. Fingerhut described his role at DPI to the Commission as limited and minimal. Fingerhut 

claimed that his role was to promote and test new verticals and/or products via email and report 

back on the performance from those emails, as well as verify tracking links worked. See id. at 589–

600, 605. He told the Commission he had no other role in hiring other than hiring individuals “to 

develop and design an Email Marketing System and an interactive sports game app for the 

NBA/WNBA.” Id. at 376; [ECF No. 179 at 18]. Fingerhut also claimed that he primarily acted at 

the direction of Passerino. [ECF No. 71-1 at 599–600].

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However, Fingerhut’s role and involvement was far from minimal. Fingerhut’s close friend 

and business colleague, Passerino, testified that “Dan controlled the marketing part of the business, 

pretty much from A to Z.” [ECF No. 175 at 49–53]. Fingerhut recruited, hired, trained, and 

supervised at least four individuals in Miami whose primary job was to create email solicitations 

and disseminate them using the autoresponders—a fact Fingerhut disputed in his deposition until 

confronted with conflicting evidence. See [ECF No. 71-1 at 390–91]. Fingerhut also hired, trained,

and supervised an individual residing in Israel who worked on digital asset marketing. Id. at 27.

Moreover, Fingerhut wrote content for the email solicitations, which was widely disseminated to 

at least 20,000 email addresses. Id. at 30; [ECF No. 175 at 25–26]. On behalf of DPL, he searched 

for the company’s office space in Miami, hired and oversaw staff, and traveled to Israel to meet 

with the company’s principals, Valariola and Barak. [ECF No. 175 at 46–47].

Third, Fingerhut falsely testified during the Atkinson litigation that the laptop he used for 

his DPI activities was the property of the company and that he handed it to Passerino when he 

resigned from DPI on August 13, 2018. See [ECF No. 71-1 at 366, 370]. The Commission relied 

on Fingerhut’s testimony that he gave Passerino the laptop on his birthday at his home. 

Atkinson, No. 1:18-CIV-23992, [ECF Nos. 103, 103-2]. Consequently, when Passerino failed to 

produce the laptop after multiple demands in the Atkinson litigation, the Commission filed a 

Motion for Rule to Show Cause as to why Passerino should not be held in contempt for failure to 

comply and produce the laptop. Id. Yet, the truth of the matter is that the laptop did not belong to 

DPI—Fingerhut purchased it and DPI did not reimburse him for the cost. Compare [ECF No. 71-

1 at 359], with [ECF No. 71-1 at 25]. And, despite Fingerhut’s statement, he never gave Passerino 

the laptop when he resigned. [ECF No. 71-1 at 27]. In fact, upon knowledge of the Commission’s 

subpoena to DPI, he told Passerino that he would throw his laptop into the ocean from his boat. 

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Id.; [ECF No. 175 at 68]. Fingerhut’s statements about his email accounts, role in the fraudulent 

scheme, and the laptop caused the Commission to lose valuable time to retrieve and examine 

pertinent documents and evidence before its destruction. 

III. CONCLUSIONS OF LAW

A. Legal Standard

Generally, a party must demonstrate four criteria to obtain a preliminary injunction: “(1) a 

substantial likelihood of success on the merits; (2) that irreparable injury will be suffered if the 

relief is not granted; (3) that the threatened injury outweighs the harm the relief would inflict on 

the non-movant; and (4) that entry of the relief would serve the public interest.” Schiavo ex. rel 

Schindler v. Schiavo, 403 F.3d 1223, 1225–26 (11th Cir. 2005) (per curiam). However, the 

standard to obtain a preliminary injunction under the Commodity Exchange Act is lower. 

Commodity Futures Trading Comm’n v. Hunter Wise Commodities, LLC, 749 F.3d 967, 974 (11th 

Cir. 2014). “[T]raditional standards applicable to private parties seeking injunctive relief do not 

apply [to the CFTC.]” Commodity Futures Trading Comm’n v. Sterling Trading Grp., 605 F. Supp. 

2d 1245, 1290 (S.D. Fla. 2009); accord Commodity Futures Trading Comm’n v. Muller, 570 F.2d 

1296, 1300 (5th Cir. 1978) (“In actions for a statutory injunction, the agency need not prove 

irreparable injury or the inadequacy of other remedies as required in private injunctive suits. A 

prima facie case of illegality is sufficient.”). Under the Act, the CFTC is entitled to a preliminary 

injunction when it shows (1) a prima facie violation of the Act has occurred or is occurring; and 

(2) that there is a “reasonable likelihood” of future violations. Sterling Trading Grp., 605 F. Supp. 

2d at 1290. Based on the foregoing, the Court makes the following conclusions of law.

B. Prima Facie Showing of Violation of the Act

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The CFTC has met its burden of showing prima facie violations of the Act. The CFTC has 

shown evidence of: Options Fraud in violation of Section 4c(b) of the Act, 7 U.S.C. § 6c(b), and 

Regulation 32.4, 17 C.F.R. § 32.4 as to Fingerhut, DPL, Valariola, and Barak; CTA Fraud in 

violation of Section 4o(1) of the Act, 7 U.S.C. § 6o(1) as to Fingerhut; Swaps and Commodities

Fraud in violation of Section 6(c)(1) of the Act, 7 U.S.C. § 9(1), and Regulation 180.1(a)(1)–(3), 

17 C.F.R. § 180.1(a)(1)–(3) as to Fingerhut, DPL, and DPI; and that Fingerhut made false and 

misleading statements in violation of Section 6(c)(2) of the Act, 7 U.S.C. § 9(2). 

1. Options Fraud in violation of Section 4c(b) of the Act, 7 U.S.C. § 6c(b), 

and Regulation 32.4, 17 C.F.R. § 32.43

Options Fraud occurs when a person or entity (1) makes a material misrepresentation or 

omission in connection with a commodity options transaction (2) with scienter. U.S. Commodity 

Futures Trading Comm’n v. Gutterman, No. 12-CIV-21047, 2012 WL 2413082, at *5 (S.D. Fla. 

June 26, 2012). The CFTC has established both elements.

First, AIP, through Fingerhut, made material misrepresentations in connection with a 

commodity options transaction when it created and disseminated solicitations that included false 

or misleading profits, risks, and user experiences with the trading systems in their binary option 

campaigns. Whether a statement or omission is misleading depends on the “overall message” and 

the “common understanding of the information conveyed.” See Commodity Futures Trading 

Comm’n v. R.J. Fitzgerald & Co., 310 F.3d 1321, 1328 (11th Cir. 2002). A statement or omission 

is “material” if a reasonable person would consider it important in deciding whether to invest. See 

id. at 1328–29. “[P]ast success and experience are material factors which a reasonable investor 

would consider when deciding to invest in commodity options through that firm or broker.” See

3 DPL, Valariola, and Barak’s liability for Options Fraud is discussed later in detail in Section B(5) of this Order.

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Commodity Futures Trading Comm’n v. Commonwealth Fin. Grp., Inc., 874 F. Supp. 1345, 1353–

54 (S.D. Fla. 1994). Thus, the fake testimonials and trading results guaranteeing profits in the 

solicitations that AIP created and disseminated are material. See Commodity Futures Trading 

Comm’n v. Matrix Trading Grp., Inc., No. 00-CIV-8880, 2002 WL 31936799, at *6 (S.D. Fla. 

Oct. 3, 2002) (“[P]romises of large and certain profits . . . are material and fraudulent.”).

Moreover, the solicitations are “in connection with” offers to enter into commodity options

transactions because they marketed access to automated trading systems. “[C]ampaigns 

market[ing] Trading Systems that purport[] to automatically trade binary options on commodities” 

fall within purview of the CFTC’s jurisdiction under the Act as “in connection with” commodities.

Commodity Futures Trading Comm’n v. Montano, No. 618CV1607ORL31GJK, 2020 WL 

5793633, at *5 (M.D. Fla. Sept. 29, 2020). The solicitations created and disseminated by AIP, 

through Fingerhut, explicitly marketed trading systems that purported to automatically trade binary 

options on commodities. In R.J. Fitzgerald, the defendants’ commercial about the trading system 

that overemphasized the profit potential, downplayed risk of loss, and urged viewers to take 

immediate action or risk missing the opportunity was in connection with commodity options and 

was materially misleading despite inclusion of boilerplate risk disclosures. 310 F.3d at 1329. Such 

is true in this case as well. 

Second, the CFTC has established the second prong of “scienter.” In the Options Fraud 

context, “scienter is met when Defendant’s conduct involves ‘highly unreasonable omissions or

misrepresentations . . . that present a danger of misleading customers which is either known to the 

Defendant or so obvious that Defendant must have been aware of it.’” Id. at 1328. Valariola, Barak,

and Fingerhut all knew the misrepresentations about “user’s” experience, trading results, and 

profits presented an obvious danger of misleading customers because the goal of the solicitations 

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was to influence customer behavior and persuade customers to open and fund brokerage accounts.

Accordingly, each of the elements of Options Fraud under Section 4c(b) of the Act and Regulation 

32.4 is met in this case, and Defendants, therefore, violated Section 4c(b) of the Act and Regulation 

32.4.

2. CTA Fraud in violation of Section 4o(1) of the Act, 7 U.S.C. § 6o(1)

The Act prohibits a CTA, associated person (“AP”) of a CTA, commodity pool operator, 

or AP of a commodity pool operator, by use of the mails or any means or instrumentality of 

interstate commerce, directly or indirectly to (A) employ any device, scheme, or artifice to defraud 

any client or participant or prospective client or participant; or (B) engage in any transaction, 

practice, or course of business which operates as a fraud or deceit upon any client or participant or 

prospective client or participant. 7 U.S.C. § 6o (1)(A)–(B). This section of the Act prohibits both 

registered and unregistered CTAs from making material misrepresentations and omissions to their 

clients regarding futures and options transactions. Commodity Futures Trading Comm’n v. 

Smithers, No. 05-CIV-80592, 2006 WL 6355688, at *6 (S.D. Fla. Oct. 11, 2006). The CFTC has 

provided sufficient evidence that Fingerhut engaged in CTA Fraud during the Binary Options 

Period under both § 6o(1)(A) and (B).4

As a threshold matter, AIP acted as an unregistered CTA and Fingerhut acted as an 

unregistered AP of a CTA during the Binary Options Period. A CTA is any person, who for 

compensation or profit, engages in the business of advising others, either directly or through 

publications, writings, or electronic media, as to the value of or the advisability of trading in any 

4 While § 6o(1)(A) requires scienter, it is not necessary to establish a violation of § 6o(1)(B). Messer v. E.F. Hutton 

& Co., 847 F.2d 673, 677–79 (11th Cir. 1988). As discussed in detail above, Fingerhut violated Section 4(c)(b) and 

its corresponding regulation with scienter.

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commodity option. 7 U.S.C. § 1a(12). “Those who provide access to trading systems can be 

commodity trading advisors.” Commodity Futures Trading Comm’n v. Atkinson, No. 18-CIV23992, 2019 WL 2125026, at *1 (S.D. Fla. Feb. 4, 2019). AIP, through its email solicitations, 

provided prospective customers with access to trading systems through a recommended broker. 

See Commodity Futures Trading Comm’n v. Wall St. Underground, Inc., 281 F. Supp. 2d 1260, 

1269 (D. Kan. 2003), aff’d and remanded, 128 F. App’x 726 (10th Cir. 2005) (finding defendants 

“acted as CTAs in that the trading systems they author and sell provide specific recommendations 

for clients and prospective clients to use to trade commodity futures and commodity options.”); 

R&W Tech. Servs. Ltd. v. Commodity Futures Trading Comm’n, 205 F.3d 165, 174 n.39 (5th Cir. 

2000) (describing CTAs as “individuals who are involved either directly or indirectly in 

influencing or advising the investment of customers’ funds in commodities”) (citing H.R. Rep No. 

93–963, at 37 (1974)). As such, AIP acted as an unregistered CTA under the Act.

Further, Fingerhut acted as an unregistered AP of a CTA. An AP is any person who

associates with a CTA as an agent or employee, in any capacity which involves the solicitation of 

a client’s or prospective client’s discretionary account or the supervision of any person or persons 

so engaged. 17 C.F.R. § 1.3. There is no dispute that Fingerhut was an employee at AIP, which 

acted as an unregistered CTA. As discussed above, AIP and Fingerhut solicited prospective clients

to open and fund new trading accounts with brokers who paid them commissions. AIP only earned 

commissions when someone funded a new binary options trading account in connection with its 

solicitations. Thus, AIP and Fingerhut, on behalf of AIP, advised customers “for compensation or 

profit” as a CTA and AP of a CTA, respectively.5

5 Neither Fingerhut nor AIP can shelter under the publisher exception. Under the statute, a publisher or producer of 

any print or electronic data of general and regular dissemination, including its employee, is exempt from liability but 

only if the furnishing of such services is solely incidental to the conduct of their business or profession. See 7 U.S.C. 

§ 1a(12)(B)–(C).

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Further, AIP and Fingerhut employed a scheme to defraud prospective clients and engaged 

in transactions and a course of business that operated as a fraud or deceit upon prospective and 

actual clients. See 7 U.S.C. § 6o (1)(A)–(B). As discussed above, Fingerhut’s primary 

responsibility at AIP was to create and disseminate, and supervise the creation and dissemination 

of, false and misleading marketing content for the purpose of soliciting prospective clients to open 

and fund new trading accounts with brokers. Fingerhut executed this fraudulent scheme against 

prospective clients via channels of interstate commerce. See United States v. Hornaday, 392 F.3d 

1306, 1311 (11th Cir. 2004) (“The Internet is an instrumentality of interstate commerce.” (citations 

omitted)). Accordingly, Fingerhut’s conduct as an AP of a CTA violated this Section of the Act.

3. Swaps and Commodities Fraud in violation of Section 6(c)(1) of the Act, 

7 U.S.C. § 9(1), and Regulation 180.1(a)(1)–(3), 17 C.F.R. § 180.1(a)(1)–

(3)

One commits Swaps and Commodities Fraud when he or she, directly or indirectly, uses, 

employs, or attempts to use or employ, any manipulative or deceptive device or contrivance in 

connection with any swap, or a contract for sale of any commodity in interstate commerce. 7 

U.S.C. § 9(1); 17 C.F.R. § 180.1(a)(1)(3). Here, Fingerhut, DPL, and DPI engaged in Swaps and 

Commodities Fraud by creating and disseminating fraudulent solicitations to persuade customers 

to open and fund illegal, off-exchange binary options (swaps) trading accounts involving foreign 

exchange currency, pairings, metals, and/or digital asset trading accounts through websites 

operated by unregistered brokers. The fraudulent solicitations were inherently manipulative and 

deceptive as evidenced by Defendants’ purpose in creating and disseminating them—to induce 

customers to open and fund new trading accounts. These manipulative and deceptive devices are 

in connection with swaps and commodities because binary options qualify as swaps, digital assets 

qualify as commodities, and options on digital assets qualify as swaps. 7 U.S.C. § 1a(47)(A). 

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Further, these manipulative devices were used in interstate commerce because they were sent via 

electronic mail over the internet and linked to various websites. See Hornaday, 392 F.3d at 1311 

(“The Internet is an instrumentality of interstate commerce.” (citations omitted)). Thus, Fingerhut, 

DPL, and DPI violated Section 9(c) of the Act. 

4. Fingerhut made false and misleading statements in violation of Section 

6(c)(2) of the Act, 7 U.S.C. § 9(2)

An individual violates Section 6(c)(2) of the Act by “(1) [making] a false or misleading 

statement or omission; (2) of material fact; (3) to the CFTC; (4) which he knew or reasonably 

should have known was false or misleading.” U.S. Commodity Futures Trading Comm’n v. 

Gramalegui, No. 15-CIV-02313-REB-GPG, 2018 WL 4610953, at *23 (D. Colo. Sept. 26, 2018)

(citing 7 U.S.C. § 9(2)). Each material representation or omission is a separate and distinct 

violation of the Act. Commodity Futures Trading Comm’n v. Levy, 541 F.3d 1102, 1111 (11th Cir. 

2008). “[A] statement is actionable under this section when it is either literally untrue or when it 

fails to include all information necessary to give the recipient a complete and accurate picture of 

the state of affairs communicated.” Gramalegui, 2018 WL 4610953, at *24. For the purpose of 

this Section, “[a] statement made to the Division of Enforcement during the course of an 

investigation, whether under oath, in response to an investigative subpoena, or voluntarily, is a 

statement ‘made to the Commission.’” Id. (internal citations omitted).

During both the Atkinson litigation and this litigation, Fingerhut intentionally or recklessly 

made false or misleading statements of material fact and omitted material facts to the Commission 

concerning: (1) his use and deletion of email accounts for business; (2) the nature and extent of his 

role in the Digital Platinum Defendants’ fraud; and (3) the whereabouts of the laptop he used to 

conduct the Digital Platinum Defendants’ business. First, Fingerhut knew or, at a minimum, 

reasonably should have known that his statements about his email accounts were false because he 

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routinely sent and received business emails from his personal accounts and then sought to conceal 

their contents. Second, Fingerhut knew or reasonably should have known the substantial and 

integral nature and extent of his role in the fraudulent solicitation schemes. His concealment and 

misstatements regarding the nature and extent of his role are material because they would have 

provided the Commission with the information necessary to appreciate the complete “state of 

affairs communicated.” See id. Third, Fingerhut falsely testified that he turned over to Passerino 

on his birthday in 2018 a “company” laptop he used for the Digital Platinum Defendants’ business. 

This statement was material because the Commission filed a Motion for Rule to Show Cause for 

why Passerino should not be held in contempt for failing to produce Fingerhut’s laptop in reliance 

on Fingerhut’s false statement. Therefore, the Court finds Fingerhut’s statements and omissions 

were in violation of Section 6(c)(2) of the Act.

5. DPL, Valariola, and Barak’s Liability 

a) Aiding and Abetting Liability 

DPL, Valariola, and Barak willfully aided and abetted Fingerhut’s and AIP’s Options 

Fraud and Swaps and Commodities Fraud. Under Section 13(a) of the Act, an individual is liable 

as an aider and abettor if he “willfully aids, abets, counsels, commands, induces, or procures the 

commission of, a violation of any of the provisions of the Act or CFTC Rules.” Commodity Futures 

Trading Comm’n v. Sidoti, 178 F.3d 1132, 1136 (11th Cir. 1999); 7 U.S.C. § 13c(a). “A defendant 

will be found liable if it ‘knowingly associates itself with an unlawful venture, participates in it to 

bring it about, and seeks by its actions to make it succeed.’” U.S. Commodity Futures Trading 

Comm’n v. Hunter Wise Commodities, LLC, 21 F. Supp. 3d 1317, 1348 (S.D. Fla. 2014).

During the Binary Options Period, DPL, through Valariola and Barak, willfully aided and 

abetted AIP’s and Fingerhut’s binary options (swaps) fraud by providing the trading software, 

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serving as a broker intermediary, supplying fraudulent sales videos, and willfully relying on and 

using the fraudulent solicitations created by AIP to earn commissions. During the Digital Asset 

Period, Valariola and Barak knew of and gave consent to Fingerhut to hire and supervise others to 

create and widely disseminate fraudulent digital asset solicitations on behalf of the Digital 

Platinum Defendants. These actions constitute willful aiding and abetting. See id. (finding that a 

wholesale precious metals trading firm and its managers aided and abetted its brokers and dealers 

who misled customers about the storage of the metals and the trading firm’s managers 

“masterminded and facilitated th[e] process of cheating retail customers”).

b) Derivative Liability

Valariola and Barak are derivatively liable for Fingerhut’s and AIP’s Options Fraud and 

Swaps and Commodities Fraud as control persons. Anyone who directly or indirectly controls 

someone that violated the Act or Regulations “may be held liable for such violation in any action 

brought by the Commission to the same extent as such controlled person.” 7 U.S.C. § 13c(b). 

Control person liability requires a showing of (1) control and (2) lack of good faith or knowing 

inducement of the acts constituting the violation. In re First Nat’l Trading Corp., CFTC No. 99-

28, 1994 WL 378010, at *11 (July 20, 1994), aff’d without opinion sub nom. Pick v. Commodity 

Futures Trading Comm’n, 99 F.3d 1139 (6th Cir. 1996); R.J. Fitzgerald, 310 F.3d at 1334 (citing 

JCC, Inc. v. Commodity Futures Trading Comm’n, 63 F.3d 1557, 1567 (11th Cir. 1995)). First, a 

defendant must possess general control over the entity principally liable and “the power or ability 

to control the specific transaction or activity upon which the primary violation was predicated.” 

Monieson v. Commodity Futures Trading Comm’n, 996 F.2d 852, 859 (7th Cir. 1993). Being an 

officer, founder, principal, or authorized signatory on a company’s bank account shows power to 

control a company. See In re Spiegel, CFTC No. 85-19, 1988 WL 232212, at *8 (Jan. 12, 1988). 

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Second, “a controlling person knowingly induce[s] conduct which violates the Act, . . . [where]

‘the controlling person had actual or constructive knowledge of the core activities that constitute 

the violation at issue and allowed them to continue.’” JCC, Inc., 63 F.3d at 1568.

Valariola and Barak are the owners and principals of DPL and control all decisions and 

company funds. They directly controlled DPL’s participation in the binary options scheme by 

acting as a broker intermediary, supplying the trading software, providing at least two fraudulent 

sales videos to AIP, and collecting and distributing commissions. Valariola and Barak knew that 

AIP’s solicitations contained inaccurate trading results, profits, testimonials, and statements about

its operation and risk but continued to rely on and use them. Accordingly, Valariola and Barak are 

liable as control persons for knowingly inducing DPL’s violation.

c) Principal Liability 

Further, DPL is principally liable for Valariola’s and Barak’s violations because their acts, 

omissions, and/or failures occurred within the scope of their employment or agency with DPL. 

Under Section 2(a)(1)(B) of the Act and Regulation 1.2, strict liability is imposed upon principals 

for the actions of their agents acting within the scope of their employment. This Court has found 

principal liability under analogous circumstances where the wrongful conduct occurred within the 

scope of the owners’ and principals’ employment. See Gutterman, 2012 WL 2413082, at *7

(finding the company principally liable when the company’s employees' actions, including the 

founder’s and managing member's, were committed within the scope of their employment with, 

and operation of the company). Because Valariola’s and Barak’s violations occurred within the 

scope of their employment or agency with DPL, DPL is principally liable. 

C. Reasonable Likelihood of Future Violations

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The Commission has established a reasonable likelihood of a risk of future violations. 

District courts in the Eleventh Circuit consider a number of factors to determine the likelihood of 

future violations including: “the egregiousness of the defendant’s actions, the isolated or recurrent 

nature of the infraction, the degree of scienter involved, the sincerity of the defendant’s assurances 

against future violations, the defendant’s recognition of the wrongful nature of his conduct, and 

the likelihood defendant’s occupation will present opportunities for future violations.” U.S. 

Commodity Futures Trading Comm’n v. K.B. Concepts Grp., LLC, No. 16-CIV-24022, 2017 WL 

3085088, at *4 (S.D. Fla. May 8, 2017) (citing SEC v. Carriba Air, Inc., 681 F.2d 1318, 1322 (11th 

Cir. 1982)). Likelihood of future violations may be inferred from past conduct. Gutterman, 2012 

WL 2413082, at *7.

Having considered these factors, the Court finds that the Commission has established a 

reasonable likelihood of future violations. This was not a one-time violation; rather, the Defendants 

exhibited a pattern of egregious behavior over the course of almost five years in deliberate pursuit 

of financial gain. See U.S. Commodity Futures Trading Comm’n v. Hunter Wise Commodities, 

LLC, No. 12-CIV-81311, 2013 WL 718503, at *11 (S.D. Fla. Feb. 26, 2013), aff’d, 749 F.3d 967 

(11th Cir. 2014) (finding a reasonable likelihood of future violations because “[t]his is not a onetime fraud. This is a careful and calculated system designed to maximize profits by taking 

advantage of ill-advised investors.”); Commodity Futures Trading Comm’n v. Rubio, 2012 WL 

13014711, at *6 (S.D. Fla. Dec. 21, 2012) (granting injunction based on “the egregious nature of 

Defendant’s long conduct of fraud”). Further, the Defendants fail to appreciate the nature of their 

wrongdoing as evidenced by their apparent reluctance to comply with the SRO and temporary 

receiver order. Moreover, Defendants have stated that they have stopped the schemes discussed 

above but have not provided this Court with sufficient assurances against future violations despite 

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numerous opportunities to do so. Based on the nature and extent of Defendants’ experience in 

online marketing and their ability to easily resume such activity, there is a reasonable likelihood 

of future violations. Accordingly, the Commission has met its burden of showing a reasonable 

likelihood of future violations. 

D. Requested Relief 

1. Preliminary Injunction

The Commission moves the Court for an order of preliminary injunction against the 

Defendants enjoining them from committing further violations of the Act. The Court finds, as 

detailed above, that the Commission has met its burden and is entitled to the requested injunctive 

relief.

2. Asset Freeze

The Commission also seeks to freeze all the Defendant’s assets. An asset freeze is 

appropriate where, as here, the Commission seeks disgorgement and restitution. See Levy, 541 

F.3d at 1114 (holding in the context of an injunction pending satisfaction of judgment that “a 

district court may freeze a defendant’s assets to ensure the adequacy of a disgorgement remedy”)

(citing SEC v. ETS Payphones, Inc., 408 F.3d 727, 734 (11th Cir. 2005) (permitting asset freezes

“as a means [to] preserv[e] funds for the equitable remedy of disgorgement”)); Commodity Futures 

Trading Comm’n v. E-Metal Merchants, Inc., No. 05-CIV-21571, 2005 WL 8155180, at *10 (S.D. 

Fla. July 27, 2005) (“The Act clearly permits district courts to issue restraining orders and asset 

freezes and the legislative history of the Act clearly demonstrates that Congress intended an asset 

freeze to preserve the status quo pending trial”). The “burden for showing the amount of assets 

subject to disgorgement (and, therefore available for freeze) is light: ‘a reasonable approximation 

of a defendant’s ill-gotten gains . . . .’” ETS Payphones, Inc., 408 F.3d at 735. In addition, the 

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Commission does not need to present evidence that the assets will be dissipated; rather, it need 

only show a concern that the Defendants’ assets will disappear. See Fed. Trade Comm'n v. Simple 

Health Plans LLC, 379 F. Supp. 3d 1346, 1364 (S.D. Fla. 2019), aff'd, 801 F. App'x 685 (11th Cir. 

2020).

The Defendants’ conduct during the pendency of this action have given the Commission 

and the Court reasonable concern that that assets will disappear: (i) Fingerhut dissipated his assets 

by paying off his mortgage and providing the quit-claim deed to his girlfriend, Relief Defendant,

for $10; (ii) according to counsel, as of October 2020, Valariola and Barak have assets that have 

not been relinquished to the Temporary Receiver; and (iii) DPL has insufficient funds to cover 

disgorgement and restitution as charged in the Amended Complaint. Therefore, an asset freeze is 

appropriate to preserve the remaining assets pending trial.

3. Continuation of Receivership and Preservation of Documents 

The Commission also asks the Court to continue the receivership. The Commission claims 

that the Temporary Receiver is critical to administering the preliminary injunction, including by 

identifying, marshaling, and distributing assets in this complex case, particularly where the matter 

involves myriad international accounts and parties and thousands of victims. See 7 U.S.C. 

§ 13a-1(a). The Court finds good cause to continue the appointment of the Temporary Receiver as 

a permanent receiver for the duration of this case based on the foregoing findings of fact and 

conclusions of law.

The Court also finds it appropriate to require Defendants to preserve and allow inspection 

and copying of records. Defendants are not registered with the Commission and therefore are under 

no regulatory obligation to maintain records that may be material to determining the full extent of 

the violative conduct. Moreover, none of the Defendants fully complied with the Commission’s 

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lawful subpoenas and requests for information, nor have all Defendants fully complied with the 

preservation and inspection requirements of the Temporary Receiver Order, [ECF No. 33], or 

SRO, [ECF No. 129]. Therefore, it is appropriate to continue the Order preserving documents and 

allowing the Commission to inspect or copy relevant records, [ECF No. 33].

IV. CONCLUSION

The record supports a finding that Defendants violated core anti-fraud provisions of the 

Act. The Court thus finds a preliminary injunction is necessary to maintain the status quo pending 

a trial on the merits. Accordingly, it is ORDERED AND ADJUDGED that Plaintiffs’ Motion for 

Preliminary Injunction, [ECF No. 11], is GRANTED as follows:

1. Defendant Daniel Fingerhut is preliminary enjoined from:

a. offering to enter into, entering into, confirming execution of, maintaining 

positions in, or otherwise conducting activities relating to binary options or 

any commodity interest (as that term is defined in Regulation 1.3(yy), 17 

C.F.R. § 1.3(yy));

b. acting as an affiliate marketer, CTA, or Associated Person of a CTA in any 

capacity that involves binary options or any commodity interest (as that 

term is defined in Regulation 1.3(yy), 17 C.F.R. § 1.3(yy));

c. offering so-called autotrading systems or services that purport to trade 

binary options or any commodity interest (as that term is defined in 

Regulation 1.3(yy), 17 C.F.R. § 1.3(yy)); 

d. using the instrumentalities of interstate commerce to: (1) cheat or defraud, 

or attempt to cheat or defraud, customers or prospective customers; (2) 

make or cause to be made false reports or statements to customers or 

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prospective customers; or (3) deceive or attempt to deceive customers and 

prospective customers, or in connection with, an offer to enter into, the entry 

into, or the confirmation of the execution of, any commodity option 

transaction or otherwise violating Section 4c(b) of the Act, 7 U.S.C. § 6c(b), 

and Regulation 32.4, 17 C.F.R. § 32.4; 

e. using the mails or any means or instrumentality of interstate commerce, 

directly or indirectly to: (A) employ any device, scheme, or artifice to 

defraud any participant; or (B) engage in any transaction, practice, or course 

of business that operates as a fraud or deceit upon any participant, in 

violation of Section of 4o(1) of the Act, 7 U.S.C. § 6o(1); 

f. using the instrumentalities of interstate commerce to: (1) use or employ, or 

attempt to use or employ, manipulative devices, schemes, and artifices to 

defraud; (2) make, or attempt to make, untrue or misleading statements of a 

material fact; (3) omit to state material facts necessary in order to make 

statements not untrue or misleading; or (4) engage, or attempt to engage, in 

acts, practices, and courses of business, which operate or would operate as 

a fraud or deceit upon customers or prospective customers in connection 

with swap transaction or otherwise violate Section 6(c)(1) of the Act, 7 

U.S.C. § 9(c)(1), and Regulation 180.1(a), 17 C.F.R. § 180.1(a)(1), (3); 

g. making false or misleading statements to or using false documents with the 

Commission or otherwise violate Section 6(c)(2) of the Act, 7 U.S.C. 

§ 9(c)(2); 

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h. destroying, deleting, deactivating, or altering in any way any email account 

used to conduct business related to All In Publishing, Digital Platinum, Inc., 

Digital Platinum Ltd, and/or Huf Mediya; and 

i. destroying or altering in any way any laptop computer, tablet, mobile 

telephone, or other electronic device used to conduct business related to All 

In Publishing, Digital Platinum, Inc., Digital Platinum Ltd., Huf Mediya, 

Tal Valariola, and/or Itay Barak.

2. Defendants Digital Platinum Ltd., Tal Valariola, and Itay Barak are preliminarily 

enjoined from:

a. offering to enter into, entering into, confirming execution of, maintaining 

positions in, or otherwise conducting activities relating to binary options or 

any commodity interest (as that term is defined in Regulation 1.3(yy), 17 

C.F.R. § 1.3(yy)); 

b. offering so-called autotrading systems or services that purport to trade 

binary options or any commodity interest (as that term is defined in 

Regulation 1.3(yy), 17 C.F.R § 1.3(yy)); and

c. using the instrumentalities of interstate commerce to: (1) cheat or defraud, 

or attempt to cheat or defraud, customers or prospective customers; (2) 

make or cause to be made false reports or statements to customers or 

prospective customers; or (3) deceive or attempt to deceive customers and 

prospective customers, or in connection with, an offer to enter into, the entry 

into, or the confirmation of the execution of, any commodity option 

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transaction or otherwise violating Section 4c(b) of the Act, 7 U.S.C. § 6c(b), 

and Regulation 32.4, 17 C.F.R. § 32.4.

3. Defendants Digital Platinum, Inc., Huf Mediya, Tal Valariola, and Itay Barak are 

preliminarily enjoined from:

a. using the instrumentalities of interstate commerce to: (1) use or employ, or 

attempt to use or employ, manipulative devices, schemes, and artifices to 

defraud; (2) make, or attempt to make, untrue or misleading statements of a 

material fact; (3) omit to state material facts necessary in order to make 

statements not untrue or misleading; or (4) engage, or attempt to engage, in 

acts, practices, and courses of business, which operate or would operate as 

a fraud or deceit upon customers or prospective customers in connection 

with any swap transaction or commodity in interstate commerce, or 

otherwise violate Section 6(c)(1) of the Act, 7 U.S.C. § 9(c)(1), and 

Regulation 180.1(a), 17 C.F.R. § 180.1(a)(1), (3); 

b. Destroying, deleting, deactivating, or altering in any way any email account, 

backend system, websites, and communications used to conduct business 

related to All In Publishing, binary options, and any commodity interest (as 

that term is defined in 17 C.F.R. § 1.3(yy)); and

c. destroying or altering in any way any laptop computer, tablet, mobile 

telephone, or other electronic device used to conduct business related to All 

In Publishing, binary options, and any commodity interest (as that term is 

defined in 17 C.F.R. § 1.3(yy)).

4. Each of the Defendants are preliminary enjoined from:

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a. trading on or subject to the rules of any registered entity (as that term is 

defined in Section 1a of the Act, 7 U.S.C. § 1a);

b. entering into any transactions involving “commodity interests” (as that term 

is defined in Regulation 1.3(yy), 17 C.F.R. § 1.3(yy)) for their personal 

account or for any account in which they have a direct or indirect interest; 

c. (i) having any commodity interests traded on their behalf; (ii) controlling or 

directing the trading for or on behalf of any other person or entity, whether 

by power of attorney or otherwise, in any account involving commodity 

interests; or (iii) soliciting, receiving, or accepting any funds from person 

for the purpose of purchasing or selling any commodity interests;

d. applying for registration or claiming exemption from registration with the 

Commission in any capacity, and engaging in any activity requiring such 

registration or exemption from registration with the Commission, except as 

provided for in Regulation 4.14(a)(9), 17 C.F.R. § 4.14(a)(9); and

e. acting as a principal (as that term is defined in Regulation 3.1(a), 17 C.F.R. 

§ 3.1(a)), agent, or any other officer or employee of any person (as that term 

is defined in Section 1a(38) of the Act, 7 U.S.C. § 1a(38)) registered, 

exempted from registration, or required to be registered with the 

Commission, except as provided for in Regulation 4.14(a)(9), 17 C.F.R. 

§ 4.14(a)(9).

5. Each of the Defendants and the Relief Defendant and all persons insofar as they are 

acting in the capacity of any Defendant’s agents, servants, successors, employees, assigns, and 

attorneys, and all persons insofar as they are acting in active concert or participation with 

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Defendants and Relief Defendant who receive actual notice of such Order by personal service or 

otherwise, are preliminarily enjoined from:

a. refusing to permit authorized representatives of the CFTC to inspect, image, 

and copy, when and as reasonably requested, any books, records, or other 

documents of Defendants and Relief Defendant, including all such records 

concerning Defendants’ and Relief Defendant’s solicitation and trading 

activities, assets, and property, wherever located, and whether they are in 

the possession of Defendants or others, either on or off the premises where 

they may be situated; and

b. destroying, mutilating, concealing, altering, disposing of, in any manner, 

any books, records, or other documents of Defendants and Relief 

Defendant, including all such records concerning Defendants’ solicitation 

and trading activities, wherever located.

6. Each Defendant and the Relief Defendant and any firm, corporation, or other person 

or entity with notice that holds any accounts, funds, assets, or other property of Defendants from 

withdrawing, transferring, removing, dissipating, concealing, assigning, pledging, encumbering, 

disbursing, converting, selling, or otherwise disposing of, in any manner, any funds, assets, or 

other property of Defendants, wherever situated.

7. Each Defendant is required to file with the Court, within ten (10) days of the date 

of this Order, a complete and accurate accounting of all of their assets and liabilities, wherever 

located, together with all funds they received from and paid to others in connection with: (i) work 

related to All In Publishing, Digital Platinum, Inc., Digital Platinum Ltd., and Huf Mediya; and 

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(ii) commodity futures transactions or purported commodity futures transactions, including binary 

options and digital assets.

8. During the pendency of this action or until further ordered by this Court, Melanie 

Damien shall continue as the Receiver and shall execute the powers vested within the Order 

Appointing Temporary Receiver. [ECF No. 33].

9. This Order shall remain in effect during the pendency of this action, or until further 

ordered by this Court.

DONE AND ORDERED in Chambers at Miami, Florida, this 7th day of January, 2021.

________________________________

DARRIN P. GAYLES

UNITED STATES DISTRICT JUDGE

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