UNITED STATES DISTRICT COURT 

SOUTHERN DISTRICT OF FLORIDA 

MIAMI DIVISION 

CASE NO. 1:20-CV-21254-BLOOM/LOUIS 

SECURITIES AND EXCHANGE 

COMMISSION, 

 

Plaintiff, 

v. 

JUSTIN W. KEENER D/B/A JMJ 

FINANCIAL, 

Defendant. 

ORAL ARGUMENT REQUESTED 

DEFENDANT’S OPPOSITION TO PLAINTIFF’S OMNIBUS DAUBERT MOTION 

TO EXCLUDE THE TESTIMONY OF GEORGE OLDFIELD, JASON FLEMMONS, 

AND STEWART MAYHEW 

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TABLE OF CONTENTS 

I. INTRODUCTION .................................................................................................................................. 1

II. FACTUAL BACKGROUND ................................................................................................................ 2

III. LEGAL STANDARDS ........................................................................................................................... 4

IV. ARGUMENT ............................................................................................................................................ 5

A. Dr. Oldfield’s First Opinion Should Be Admitted. ......................................................................... 5

B. Dr. Oldfield’s Second Opinion Should Be Admitted. .................................................................... 8

C. Dr. Oldfield’s Third Opinion Should Be Admitted. ..................................................................... 12

D. Mr. Flemmons’s Opinions Should Be Admitted. .......................................................................... 14 

E. The SEC Concedes Dr. Mayhew’s Opinion Is Admissible. ........................................................ 17

V. CONCLUSION ...................................................................................................................................... 17

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TABLE OF AUTHORITIES 

Page(s) 

Cases 

Christopher v. SmithKline Beecham Corp., 

567 U.S. 142 (2012) ................................................................................................................................... 10 

City of Tuscaloosa v. Harcros Chemicals, Inc., 

158 F.3d 548 (11th Cir. 1998) ................................................................................................................. 16

Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579 (1993) ...............................................................................................................................5, 16

Diebold v. Marshall, 

585 F.2d 1327 (6th Cir. 1978) ................................................................................................................... 9 

Easterwood v. Carnival Corp., 

No. 19-cv-22932-BLOOM/Louis, 2020 WL 6880369 (S.D. Fla. Nov. 23, 2020) ............................ 5

FTC v. Qualcomm Inc., 

Case No. 17-CV-00220-LHK, 2018 WL 6460573 (N.D. Cal. Dec. 10, 2018) .......................... 10, 11 

Garfield v. NDC Health Corp., 

466 F.3d 1255 (11th Cir. 2006) ............................................................................................................... 10

Highland Capital Mgmt. v. Schneider, 

551 F. Supp. 2d 173 (S.D.N.Y. 2008)....................................................................................................... 9 

Horrillo v. Cook Inc., 

No. 08–60931–CIV, 2014 WL 2708349 (S.D. Fla. June 6, 2014) ...................................................... 10

Johnson v. Carnival Corp., 

Case No. 19-cv-23167-BLOOM/Louis, 2021 WL 1341527 (S.D. Fla. Apr. 9, 

2021) ............................................................................................................................................................ 13 

Maiz v. Virani, 

253 F.3d 641 (11th Cir. 2001) ............................................................................................................... 5, 7

Ohio State Troopers Ass’n, Inc. v. Point Blank Enters., Inc., 

CASE NOS. 18-CV-63130-RUIZ/STRAUSS, 19-CV-61881, 2020 WL 1666763 

(S.D. Fla. Apr. 3, 2020) ...................................................................................................................... 13, 14

SEC v. Hall, 

Case No. 15-CV-23489-Altonaga/O’Sullivan, 2017 WL 3635109 (S.D. Fla. Jan. 

4, 2017) ...................................................................................................................................................9, 11 

Case 1:20-cv-21254-BB Document 84 Entered on FLSD Docket 08/27/2021 Page 3 of 23
SEC v. Kovzan, 

No. 11–2017–JWL, 2012 WL 4819011 (D. Kan. Oct. 10, 2012) ...................................................9, 10

SEC v. Spartan Secs. Grp., Ltd., 

No. 8:19-cv-448-T-33CPT, 2020 WL 7024884 (M.D. Fla. Nov. 30, 2020) .............................. 6, 7, 9 

United States v. Bilzerian, 

926 F.2d 1285 (2d Cir. 1991) ...............................................................................................................6, 13 

Statutes 

Securities Exchange Act of 1934 Section 15(a) ............................................................................................. 2

Other Authorities 

Fed. R. Evid. 702 .................................................................................................................................... 4, 7, 16 

Fed. R. Evid. 702 advisory committee’s note to 2000 amendment ............................................................ 7 

Guide to Broker-Dealer Registration, https://www.sec.gov/reportspubs/investorpublications/divisionsmarketregbdguidehtm.html ................................................................................ 5 

Joel Hasbrouck, Empirical Market Microstructure: The Institutions, Economics, and 

Econometrics of Securities Trading, Oxford University Press (2007) .......................................................... 7

Larry Harris, Trading and Exchanges, Oxford University Press (2003) ......................................................... 7

Mark Garman, Market Microstructure, Journal of Financial Economics 3 (1976) ....................................... 7

Maureen O’Hara, Market Microstructure Theory, Blackwell Publishing (1997) ............................................. 7

Richard Brealey, Stewart Myers, & Franklin Allen, Principles of Corporate Finance (10th 

ed. 2011) ....................................................................................................................................................... 7

Uniform Application for Broker-Dealer Registration, 

https://www.sec.gov/about/forms/formbd.pdf .................................................................................. 6

William L. Silber, Marketmaker Behavior in an Auction Market: An Analysis of Scalpers in 

Futures Markets, 39 The Journal of Finance, no. 4 (1984) ...................................................................... 7

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I. INTRODUCTION 

The SEC through its Daubert Motion (“Mot.”) seeks to litigate this case without any 

inconvenient facts. It wants to hide from the jury that there are a plethora of other firms and 

persons who, like Mr. Keener, make a living from buying and selling securities but are not required 

by the SEC to register as securities dealers. It also does not want the jury to know that of the 3,400 

firms and persons that are currently registered broker-dealers, none of them are similar to Mr. 

Keener—not one of them solely invests its own money and does not serve customers. Nor does the 

SEC want anyone to explain the technical financial and economic terms in this case to the jury, for 

instance what a convertible note is or what it means to be a market maker or to use a bid-ask spread. 

This is the testimony that Mr. Keener seeks to introduce through Dr. George Oldfield. Dr. 

Oldfield is an expert with decades of experience as a practitioner in the securities industry, including 

extensive experience managing securities and convertible bond trading at a broker-dealer. He also 

has more than 20 years’ experience as a finance professor teaching graduate courses in trading, 

market making, and investing activities. And he also served as an Economic Fellow at the SEC, 

where he advised on many issues, including how market makers work. Dr. Oldfield’s testimony is 

relevant to the core issues in the case, including how dealers operate in the real world, and whether 

Mr. Keener could have been on notice of any requirement that he register as a securities dealer. His 

testimony will be helpful to the jury. 

In addition, the SEC apparently seeks to prevent Mr. Keener from being able to contest the 

SEC’s own affirmative assertions about the revenue, profits, and income Mr. Keener purportedly 

generated through sales of converted stock. Specifically, Mr. Keener’s expert Jason Flemmons, a 

former Deputy Chief Accountant at the SEC, analyzed the SEC’s income claims. He assessed Mr. 

Keener’s summary revenue and income data and tested it against hundreds of underlying transaction 

and expense records. Following this detailed analysis, Mr. Flemmons concluded that the SEC’s 

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allegations were flawed because the SEC’s numbers included revenue generated from sources other 

than the sale of converted stock and because they failed to account for Mr. Keener’s business 

expenses. The SEC has put Mr. Keener’s income at issue, and it should not be permitted to prevent 

Mr. Keener from defending against its allegations. 

None of the SEC’s arguments to the contrary have any merit and are based largely on a pinsized view of relevance that is unsupported by any case law. The SEC’s other tactic is to ask that the 

Court adopt a heightened standard that expert testimony be “scientific” in nature to be admissible. 

But of course, the Federal Rules require no such thing, and specifically allow for expert testimony 

that is based not on a “scientific method” but on knowledge, skill, training and education. The 

SEC’s Motion must be denied. 

II. FACTUAL BACKGROUND 

The SEC filed a single-count complaint against Mr. Keener on March 24, 2020, alleging that 

Mr. Keener’s investments in convertible notes, coupled with his converting some of those notes into 

shares of stock and selling the shares of stock in the stock market, required him to register as a 

securities dealer under Section 15(a) of the Securities Exchange Act of 1934. Compl. ECF No. 1, at 

10-11. Mr. Keener’s contends that the Exchange Act’s definition of a dealer cannot be interpreted 

as broadly as the SEC seeks to do in this case. Mr. Keener based his defense on statutory language, 

legislative history, judicial interpretations, industry practice, as well as the SEC’s own formal 

rulemaking interpretations, published guidance, no-action letters, and public statements. These 

sources establish that Mr. Keener is not a dealer but is instead an investor that fits the trader 

exception to the dealer definition, and that this interpretation is supported by the fact that there are 

thousands of unregistered investors that buy and sell securities for a living. 

To this end, and pursuant to the Court’s amended discovery order (ECF No. 41) Mr. Keener 

disclosed three experts and served their respective reports on July 1, 2021. Mr. Keener offered 

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reports from three well-qualified and seasoned experts: Dr. George Oldfield, Dr. Stewart Mayhew, 

and Mr. Jason Flemmons. The SEC, on the other hand, did not disclose any expert witnesses by the 

July 1 deadline. 

Mr. Keener’s three expert reports concern key defenses in this case. Dr. Oldfield, Principal 

Emeritus at the Brattle Group, has fifty years of experience in the securities industry as an academic, 

practitioner, and regulator, including a position as an Economic Research Fellow at the SEC, a 

Managing Director at PaineWebber Capital Markets, and an Economist at the Federal Reserve 

Banks of New York and Philadelphia. See Ex. 1 (7.1.21 Oldfield Report) ¶¶ 1-7 & App’x A. Based 

on his extensive knowledge and expertise in the field, Dr. Oldfield’s report addresses numerous 

matters beyond the knowledge of a lay jury. He explains the nature of convertible securities and the 

role of different participants in the financial markets. See id. § VII. He offers an opinion regarding 

how Mr. Keener’s investments in convertible securities compared to the activities of other market 

participants, as understood in the relevant academic literature and in practice. See id. He also 

analyzes and summarizes the activities of different types of firms involved in buying and selling 

securities that are not registered dealers, as well as those that are. See id. §§ VIII-IX. In preparing his 

report, Dr. Oldfield reviewed pleadings and discovery materials, public data regarding dealers and 

other financial firms, as well as textbooks and peer-reviewed academic research in the field of 

market microstructure. See id. at App’x B. The SEC did not offer an affirmative expert regarding 

such matters. See id. ¶¶ 43-44.

Mr. Flemmons, Senior Managing Director of Forensics at Ankura Consulting Group, has 

twenty-five years of experience in forensic accounting and auditing, as a consultant and a regulator. 

Ex. 2 (7.1.21 Flemmons Report) ¶¶ 5-10. Mr. Flemmons is a Certified Public Accountant and is 

Certified in Financial Forensics by the AICPA. Id. ¶ 5. He also served as the Deputy Chief 

Accountant of the SEC’s Division of Enforcement. Id. ¶ 6. His report assessed Mr. Keener’s 

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proceeds and business expenses, to address the SEC’s allegations that Mr. Keener earned $20 

million or more in profit from his sales of converted stock. Id. ¶ 19 (referring to SEC Complaint). 

In response to discovery requests seeking the basis for that figure, the SEC pointed to one 

document—a spreadsheet prepared by one of Mr. Keener’s assistants. Ex. 3 (4.8.21 Pl.’s Resps. to 

Def.’s Second Set of Reqs. for Admis.) at 8. Applying his accounting expertise, Mr. Flemmons 

reviewed that spreadsheet, as well as hundreds of transaction and expense records, and concluded 

that the spreadsheet (1) included net proceeds unrelated to sales of converted stock; and (2) 

excluded Mr. Keener’s business expenses. Ex. 2 § II.1 The SEC did not offer an affirmative expert 

or any other information during discovery regarding its profits allegations. 

Dr. Mayhew, Vice President at Cornerstone Research, has twenty-five years of experience as 

an academic, regulator, and consultant in economic and finance matters. Ex. 5 (7.1.21 Mayhew 

Report) ¶¶ 1-3. Dr. Mayhew is also an SEC veteran and has consulted on numerous matters 

regarding securities and various financial instruments. He was retained to address the assertion by 

the SEC in discovery that Mr. Keener’s transactions caused harm to the “counterparties” to his 

stock sales. Id. ¶¶ 6-7. In his analysis, Dr. Mayhew also provides important background on 

convertible note transactions and the nature and composition of over-the-counter (OTC) markets. 

Again, the SEC did not offer an affirmative expert of its own on these topics. 

III. LEGAL STANDARDS 

The Eleventh Circuit has held that expert testimony is admissible under Federal Rule of 

Evidence 702 if it meets three criteria: (i) the expert is qualified to testify competently regarding the 

matters he intends to address; (ii) the methodology by which the expert reaches his conclusions is 

1

 Mr. Flemmons submitted a modified report on July 30, 2021, which merely reflected the 

completion of validation testing of the business expenses and proceeds that Mr. Flemmons had not 

been able to complete by the initial deadline, as well as other light edits. The two opinions that Mr. 

Flemmons offered did not change between the initial report dated July 1, 2021 and the final report 

submitted on July 30, 2021. Ex. 4 (7.30.21 Final Flemmons Report). 

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sufficiently reliable as determined by the sort of inquiry mandated in Daubert; and (iii) the testimony 

assists the trier of fact, through the application of scientific, technical, or specialized expertise, to 

understand the evidence or to determine a fact in issue. See, e.g., Maiz v. Virani, 253 F.3d 641, 665 

(11th Cir. 2001); Easterwood v. Carnival Corp., No. 19-cv-22932-BLOOM/Louis, 2020 WL 6880369, at 

*1 (S.D. Fla. Nov. 23, 2020) (citing United States v. Frazier, 387 F.3d 1244, 1260 (11th Cir. 2004)). 

“The inquiry envisioned by Rule 702 is . . . a flexible one.” Daubert v. Merrell Dow Pharmaceuticals, Inc., 

509 U.S. 579, 594 (1993). “Many factors will bear on the inquiry, and [there is no] definitive 

checklist or test.” Id. at 593. 

IV. ARGUMENT 

A. Dr. Oldfield’s First Opinion Should Be Admitted. 

This case involves many concepts and terms that are beyond the understanding of a 

layperson, including microcap companies and convertible note investments. It also involves the 

characteristics of a dealer, which by the SEC’s own admission includes a number of concepts and 

terms that are based on economic and financial activities and have no standard legal definitions. For 

instance: 

 The Complaint alleges Mr. Keener made “a spread or markup on the stock that he 

sold, [which] is a common attribute of a securities dealer.” Compl. ECF No. 1, ¶ 13. 

A “spread” is not a legal term. 

 The SEC’s Guide to Broker-Dealer Registration refers to many economic terms 

including “a matched book of repurchase agreements,” a “selling group,” and 

“mak[ing] a market.” Guide to Broker-Dealer Registration, 

https://www.sec.gov/reportspubs/investorpublications/divisionsmarketregbdguidehtm.html, § II.B. 

 FINRA (the Financial Industry Regulatory Authority) which regulates broker-dealers, 

lists a number of economic activities that are characteristic of broker-dealers, 

including “Exchange member engaged in floor activities” and “retailing corporate 

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equity securities over-the-counter.” See Uniform Application for Broker-Dealer 

Registration, https://www.sec.gov/about/forms/formbd.pdf. 

These are exactly the types of terms Dr. Oldfield elucidates and applies to the facts of the 

case. For instance, he explains what a convertible note is and why companies might enter into 

convertible note agreements. See Ex. 1 § V. He also explains a number of concepts relevant to 

understanding dealer characteristics from the field of market microstructure, including “bid and ask” 

prices, “market makers,” “repurchase agreements,” and “Over-the-Counter markets,” and he then 

applies those terms to Mr. Keener’s activities. See id. § VII. This is exactly the type of information 

that will be helpful to simplify complex and unfamiliar terms for the jury. See, e.g., SEC v. Spartan 

Secs. Grp., Ltd., No. 8:19-cv-448-T-33CPT, 2020 WL 7024884, at *3 (M.D. Fla. Nov. 30, 2020) 

(admitting expert testimony to explain the microcap securities industry, because such testimony 

would be “helpful” for the jury); United States v. Bilzerian, 926 F.2d 1285, 1294 (2d Cir. 1991) 

(“Particularly in complex cases involving the securities industry, expert testimony may help a jury 

understand unfamiliar terms and concepts.”). 

The SEC’s argument to the contrary is inconsistent and meritless. The SEC first criticizes 

Dr. Oldfield for not offering an opinion as to the ultimate question whether Mr. Keener “was acting 

as a dealer under the securities laws” but then turns around and complains that he testifies to “legal 

conclusions.” Mot. at 5. Dr. Oldfield’s opinion concerns neither the securities laws nor legal 

conclusions. Instead, he explains complex economic and finance concepts, including various dealer 

characteristics, and applies them to Mr. Keener’s activities. See Ex. 1 § VII. Such an opinion is an 

accepted topic for expert testimony. See, e.g., Spartan, 2020 WL 7024884, at *7 (admitting expert 

testimony regarding terms, customs, standards, and practices of microcap industry and application to 

the facts of the case, over objection that the testimony constituted legal conclusions). 

Dr. Oldfield’s application of market microstructure concepts to the facts of this case is also 

based on a reliable methodology. His opinion is based on five decades of experience in financial 

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markets and the securities industry as an academic, regulator, and practitioner, as well as on highly 

regarded textbooks and peer-reviewed research published in top academic journals.2 See Ex. 1 at 

App’x B; see also Ex. 6 (7.29.21 Oldfield Tr.) at 14:12-22, 75:20-23 (“I based my report on the 

economic analysis of dealership, on the economic analysis of investing” and on “widely accepted” 

and reliable academic sources). Opinions grounded in academic research and experience as a 

practitioner are routinely considered reliable and admissible. See Maiz, 253 F.3d at 666 (“[T]here is 

no question that an expert may still properly base his testimony on professional study or personal 

experience.”). 

At most, the SEC claims Dr. Oldfield’s opinion is not reliable because it is not a “scientific” 

opinion and is not based on a “scientific methodology.” Mot. at 6-7. The SEC is wrong—as a 

matter of law, an expert analysis need not be based on a scientific method, and instead can be based 

on academic research and practical experience. See, e.g., Fed. R. Evid. 702 advisory committee’s note 

to 2000 amendment (“Some types of expert testimony will not rely on anything like a scientific 

method. . . . Nothing in this amendment is intended to suggest that experience alone—or experience 

in conjunction with other knowledge, skill, training or education—may not provide a sufficient 

foundation for expert testimony. To the contrary, the text of Rule 702 expressly contemplates that 

an expert may be qualified on the basis of experience.”); Spartan, 2020 WL 7024884, at *4 (admitting 

2

 For instance, Dr. Oldfield relied on the following sources: Richard Brealey, Stewart Myers, & 

Franklin Allen, Principles of Corporate Finance (10th ed. 2011); Mark Garman, Market Microstructure, 

Journal of Financial Economics 3 (1976); Larry Harris, Trading and Exchanges, Oxford University 

Press (2003); Joel Hasbrouck, Empirical Market Microstructure: The Institutions, Economics, and Econometrics 

of Securities Trading, Oxford University Press (2007); Maureen O’Hara, Market Microstructure Theory, 

Blackwell Publishing (1997); William L. Silber, Marketmaker Behavior in an Auction Market: An Analysis 

of Scalpers in Futures Markets, 39 The Journal of Finance, no. 4 (1984). 

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expert testimony based on specialized knowledge regarding the securities industry, over objections 

that testimony was not complex or technical). 

Finally, the SEC claims Dr. Oldfield’s analysis is not “reliable” because none of the 

economic literature he cites “analyzed a dealer . . . selling stock converted from notes.” Mot. at 6-7. 

But that is exactly Dr. Oldfield’s point. No academic literature concerning financial markets treats 

convertible notes as having any unique relevance to the dealer analysis. Not to mention, Dr. 

Oldfield did provide extensive background information about convertible notes and the benefits 

they offer to companies and investors alike. See Ex. 1 § V. 

B. Dr. Oldfield’s Second Opinion Should Be Admitted. 

Dr. Oldfield in his second opinion summarizes different market participants involved in 

buying and selling securities, including convertible notes, and compares and contrasts their activity 

with Mr. Keener’s. See Ex. 1 ¶¶ 48-69. For instance: 

 Angel Investors: Dr. Oldfield examines angel investors, who are wealthy 

individuals who invest their own money in early-stage companies that are seeking to 

develop a product and generate revenue. Id. ¶ 50. Because of the risky nature of the 

investments, when there is no guarantee that a company will succeed, angel 

investments frequently take the form of convertible notes with conversion 

discounts. Id. ¶¶ 50-52. Mr. Oldfield explains that there are angel investors similar 

to Mr. Keener who are not registered dealers. Id. ¶¶ 54-55. 

 Hedge Funds: Dr. Oldfield also examines hedge funds, which are private 

investment vehicles for wealthy individuals, and that employ complex trading 

strategies to maximize returns. Id. ¶ 56. He explains that there are many hedge 

funds similar to Mr. Keener, including those with substantial assets, that are not 

registered as dealers. Id. ¶¶ 58-59. 

 High-Frequency Traders: Dr. Oldfield also examines high-frequency traders, 

which place rapid and high-volume orders into the market. Id. ¶ 61. Such traders 

may be responsible for up to 50% of all trading volume in the United States. Id. 

Dr. Oldfield explains that there are such high-frequency traders that share some 

characteristics with Mr. Keener and are not registered as dealers. Id. ¶¶ 63-65. 

 Single Family Offices: Dr. Oldfield also examines single family offices, which are 

private wealth management companies that serve high-net-worth families and invest 

in a wide variety of instruments. Id. ¶ 66. Dr. Oldfield explains that there are single 

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family offices that are similar to Mr. Keener and are not registered as dealers. Id. ¶ 

68. 

Dr. Oldfield’s analysis shows that there are many market participants who make a living 

from buying and selling securities, who share characteristics with Mr. Keener, yet are not registered 

as securities dealers. It cannot reasonably be disputed that such industry context and analysis is 

relevant to Mr. Keener’s contention that he was not a dealer and did not have fair notice of the 

dealer definition that the SEC promotes in this case. See, e.g., SEC v. Hall, Case No. 15-CV-23489-

Altonaga/O’Sullivan, 2017 WL 3635109, at *3 (S.D. Fla. Jan. 4, 2017) (noting that courts often find 

“testimony regarding the security industry’s standards” relevant in securities cases); Highland Capital 

Mgmt. v. Schneider, 551 F. Supp. 2d 173, 180 (S.D.N.Y. 2008) (allowing expert testimony on customs 

and practices in the securities industry); SEC v. Kovzan, No. 11–2017–JWL, 2012 WL 4819011, at *5 

(D. Kan. Oct. 10, 2012) (industry practice in a securities case is relevant to a fair notice defense). 

When an entire industry agrees with Mr. Keener’s position, and disagrees with the SEC’s current 

litigation position, that is clear evidence that the SEC’s position is mistaken. See, e.g., Diebold v. 

Marshall, 585 F.2d 1327, 1336 (6th Cir. 1978) (industry practice with regard to government’s current 

litigation or enforcement posture is relevant to fair notice). Nor can it reasonably be disputed that 

such industry context is outside “the common knowledge of lay people” and is thus an appropriate 

topic for expert analysis. See, e.g., Spartan, 2020 WL 7024884, at *7 (admitting expert analysis 

regarding transfer agent industry standards because it explained aspects of the industry “not in the 

common knowledge of lay people.”).3 

The SEC claims Dr. Oldfield’s analysis is irrelevant because it was “not required to charge” 

other market participants with “operating as an unregistered dealer” before suing Mr. Keener. Mot. 

3

 Industry practice is also highly relevant to the SEC’s requested relief—particularly its request for 

injunctive relief. As this Court has recognized, the propriety of injunctive relief requires an 

assessment of Mr. Keener’s scienter. Order ECF No. 29, at 11. And Mr. Keener can demonstrate 

that he lacked scienter by demonstrating that his conduct was consistent with industry custom and 

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at 8. Even if that is true, Mr. Keener is of course entitled to point to the SEC’s “very lengthy period 

of conspicuous inaction” against any defendant who looked remotely similar to Mr. Keener. 

Christopher v. SmithKline Beecham Corp., 567 U.S. 142, 157-58 (2012). Indeed, such evidence proves 

Mr. Keener’s fair notice defense, because while it may be “possible for an entire industry to be in 

violation of the [law] for a very long time without the [SEC] noticing” the “more plausible 

hypothesis is that the [SEC] did not think the industry’s practice was unlawful.” Id. (internal 

quotations omitted). And Dr. Oldfield’s opinion is directly relevant to proving the financial 

industry’s understanding and practice with regards to the dealer definition. 

Dr. Oldfield’s analysis of other market participants in the financial industry is based on his 

decades of experience as a practitioner in the industry, an analysis of public information about 

market participants, and a review of relevant academic literature. This is precisely the indicia of 

reliability courts look at when determining that expert testimony is admissible. See Horrillo v. Cook 

Inc., No. 08–60931–CIV, 2014 WL 2708349, at *4 (S.D. Fla. June 6, 2014) (finding testimony reliable 

where expert’s opinions were supported by peer-reviewed literature and the expert’s expertise and 

experience). In addition to his own experience and academic research, Dr. Oldfield reviewed 

representative discovery materials, including transaction records related to Mr. Keener’s investments 

in convertible notes, in order to compare Mr. Keener’s activities to those of other market 

participants. See Ex. 1 § VI. His selection of materials was appropriately tailored to the allegations 

in the SEC’s Complaint. See, e.g., FTC v. Qualcomm Inc., Case No. 17-CV-00220-LHK, 2018 WL 

practice. See, e.g., Kovzan, 2012 WL 4819011, at *5 (defendant can show lack of scienter by showing 

he did not depart from industry standards); see also Garfield v. NDC Health Corp., 466 F.3d 1255, 1264 

(11th Cir. 2006) (explaining that scienter requires a showing of recklessness; an extreme departure 

from standards of ordinary care). 

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6460573, at *3 (N.D. Cal. Dec. 10, 2018) (finding review of representative documents was 

appropriate). 

The SEC claims Dr. Oldfield’s opinion should be excluded because he focused on the 

transactions identified in the SEC’s Complaint and did not expand to a detailed review of all of Mr. 

Keener’s transactions. Mot. at 9 (taking issue with Dr. Oldfield’s review of “a few of” Mr. Keener’s 

investments). The SEC’s criticism rings particularly hollow when its entire Motion for Summary 

Judgment does not discuss even one specific transaction in any detail, let alone perform the detailed 

review it claims Dr. Oldfield should have conducted. Regardless, the SEC does not identify any 

material fact from the remainder of Mr. Keener’s transactions that would have altered Dr. Oldfield’s 

conclusions. Hall, 2017 WL 3635109, at *4 (number of documents reviewed is irrelevant to 

admissibility of opinion, and expert need not review immaterial documents). 

Moreover, the SEC seeks to distinguish Mr. Keener from the other market participants that 

Dr. Oldfield addressed. For instance, the SEC argues Mr. Keener is different from angel investors, 

and that the marketing materials used by angel investors, hedge funds, and other financial industry 

participants may be different from those used by Mr. Keener. See Mot. at 9-10. But those are 

arguments for the jury, not for the Court in a Daubert motion. See Hall, 2017 WL 3635109, at *4 

(criticisms of the “factual underpinnings” of an expert opinion “go to the weight and credibility of 

his testimony, not to its admissibility.”) (quoting Sorrels v. NCL (Bahamas) Ltd., 796 F.3d 1275, 1285 

(11th Cir. 2015)); Qualcomm Inc., 2018 WL 6460573, at *3 (criticisms that expert formed opinions 

based on incomplete data is a topic for cross-examination). The same is true for the SEC’s claim 

that Dr. Oldfield “hand-picked” examples of other market participants to compare to Mr. Keener. 

Mot. at 10. Dr. Oldfield identified market participants that shared characteristics the SEC has 

focused on in this case—namely, the fact that Mr. Keener had a website, had employees, and 

attended conferences. See Compl. ECF No. 1, ¶¶ 5 (alleging that Mr. Keener once employed “as 

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many as twenty people”) and 10 (noting that Mr. Keener “operated a website,” “hired employees,” 

and “attended, and sometimes sponsored, conferences”). Indeed, these are the very facts on which 

the SEC’s entire Motion for Summary Judgment is premised. See Pl.’s Mot. for Summ. J. ECF No. 

68, at 5-8; Pl.’s Statement of Material Facts ECF No. 67, ¶¶ 43-49, 50-52, 55-57, 60, 65. The SEC’s 

claim that these facts are crucial for the Court to consider, but were improper for Dr. Oldfield to 

consider in evaluating comparable market participants makes no sense and should be rejected.4 

C. Dr. Oldfield’s Third Opinion Should Be Admitted. 

Dr. Oldfield in his third opinion analyzed extensive data concerning registered dealers and 

compared Mr. Keener’s investing activity to the activities of these registered dealers. See Ex. 1 ¶¶ 70-

76. Specifically, Dr. Oldfield analyzed and summarized the forms (titled Form BD) that firms must 

complete in order to register as securities dealers. The Form BD lists 26 types of economic activity 

registrants use to describe their business. See id. ¶ 72. Dr. Oldfield’s analysis of the Form BDs 

completed by the more than 3,400 registered broker-dealers demonstrates that all of them engage in 

customer-facing activities with the investing public, and none of them are similar to Mr. Keener in 

solely trading for their own account. See id. ¶¶ 72-76. Dr. Oldfield’s analysis of registered dealers 

establishes Mr. Keener’s key claim in this case—that the extraordinarily overbroad interpretation of 

the dealer definition that the SEC is promoting in this case has no connection to reality. 

The SEC has no serious argument that the activities engaged in by the thousands of 

registered broker-dealers are irrelevant to this case. Instead, the SEC claims Dr. Oldfield’s analysis 

should be excluded because it could “confuse the jury.” But the SEC’s explanation of how the jury 

4

 Nor do the SEC’s cases support its claims, because the SEC has not identified any relevant data 

that Dr. Oldfield overlooked that would have altered his opinion. See Mot. at 12 (citing cases all 

focused on experts who had ignored “relevant data”: Cates v. Whirlpool Corp., No. 15-cv-5980, 2017 

WL 1862640, at *15 (N.D. Ill. May 9, 2017); LeClercq v. The Lockformer Co., No. 00 C 7164, 2005 WL 

1162979, at *4 (N.D. Ill. Apr. 28, 2005); In re Hanford Nuclear Reservation Litig., 894 F. Supp. 1436, 

1450 (E.D. Wash. 1995).) 

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might be so “confused” is less than clear, and appears to hinge on Dr. Oldfield’s statement that he 

was not applying the legal “definition of ‘underwriter’” in his analysis of the Form BD data. Mot. at 

13. Regardless, the SEC is free to clear up any confusion it perceives through cross-examination or 

presentation of additional evidence. See, e.g., Johnson v. Carnival Corp., Case No. 19-cv-23167-

BLOOM/Louis, 2021 WL 1341527, at *3 (S.D. Fla. Apr. 9, 2021) (expert witness preclusion for 

potential jury confusion under Rule 403 is an “extraordinary remedy” and proper cure for 

weaknesses in expert testimony is through cross-examination). 

Dr. Oldfield’s analysis of the dealer registration data is reliable and is based on a statistical 

analysis as well as his decades of experience in the financial industry. First, Dr. Oldfield explained 

the Form BD itself, which uses many technical and economic terms that are not defined in the form, 

including “Exchange member engaged in exchange commission business other than floor activities,” 

“Broker or dealer making inter-dealer markets in corporate securities over-the-counter,” “Solicitor 

of time deposits in a financial institution,” and “Real estate syndicator.” Ex. 1 ¶ 72. Such 

explanations are a proper topic for expert testimony. See, e.g., Bilzerian, 926 F.2d at 1294 (admitting 

expert testimony on “unfamiliar terms and concepts” in securities case). 

Dr. Oldfield then explained that, of the 26 lines of business on the form, the only activity 

Mr. Keener engaged in was “trading securities for own account.” Ex. 1 ¶ 72. Next, Dr. Oldfield 

analyzed and summarized data contained in more than 3,400 separate registration forms, focusing in 

particular on the firms that identify “trading securities for own account” among their business 

activities. Id. ¶¶ 73, 75. Based on this analysis, he concluded that Mr. Keener would have been an 

anomaly among registered dealers because there are no registered dealers that, like Mr. Keener, 

only trade for their own account and have no customers. Id. ¶¶ 75, 76. Such an analysis of 

voluminous data is appropriate for expert analysis. Ohio State Troopers Ass’n, Inc. v. Point Blank Enters., 

Inc., CASE NOS. 18-CV-63130-RUIZ/STRAUSS, 19-CV-61881, 2020 WL 1666763, at *15 (S.D. 

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Fla. Apr. 3, 2020) (“[E]xpert testimony that ‘synthesizes or summarizes data in a manner that 

streamlines the presentation of that data’ is admissible.”) (quoting Scott v. Chipotle Mexican Grill, Inc., 

315 F.R.D. 33, 45 (S.D.N.Y. 2016)). 

The SEC argues Dr. Oldfield’s analysis is not reliable because it is purportedly simple 

“arithmetic” rather than the product of “scientific knowledge” or “methodology.” Mot. at 12-13. 

But it is not mere “arithmetic”—it is a distillation of thousands of pieces of complex data. This is a 

proper topic for expert testimony. See Ohio State Troopers, 2020 WL 1666763, at *15. Moreover, the 

SEC identifies no flaws in Dr. Oldfield’s analysis that would make it unreliable. And as a matter of 

law, expert testimony does not need to be “scientific” in order to be reliable. See Sec. IV.A.ii., supra. 

D. Mr. Flemmons’s Opinions Should Be Admitted. 

i. Mr. Flemmons’s Opinions Relate to More Than Remedies. 

Mr. Flemmons’s opinions also relate to a core issue in this case—which sales of converted 

stock are alleged to have required Mr. Keener to register as a dealer, and whether and how much Mr. 

Keener profited from those sales. Ex. 2 at 5 (summarizing opinions). Accordingly, his opinions are 

highly relevant and admissible at any jury trial concerning liability, and not just remedies as the SEC 

contends. Mot. at 14-15. The SEC’s pleadings are replete with allegations—indeed, with conflicting 

and contradictory allegations—about Mr. Keener’s revenue, income, and profit purportedly 

generated through the sale of converted stock. For instance, the Complaint alleges Mr. Keener 

generated $21.5 million in “profits.” Compl. ECF No. 1, at 2, 4, 9. In its Initial Disclosures, the 

SEC estimated Mr. Keener’s allegedly obtained “ill-gotten gains” of $20 million. Ex. 7 (7.20.20 Pl.’s 

Initial Discl.) at 3. The SEC’s Motion for Summary Judgment is premised on its claim that Mr. 

Keener generated more than $33 million in “net income.” Pl. Mot. for Summ. J. ECF No. 68, at 8. 

This $33 million figure is based on a declaration by an SEC employee, Carmen Taveras, that was 

attached to the SEC’s Motion for Summary Judgment. Decl. of Carmen A. Taveras ECF No. 67-11, 

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¶ 4. The SEC has put these numbers at issue in any jury trial on liability. If these numbers were not 

at issue, it would not have attached the Taveras declaration to its Motion for Summary Judgment. 

Thus, Mr. Keener is entitled to rebut the SEC’s numbers through Mr. Flemmons’s detailed expert 

analysis of Mr. Keener’s proceeds and expenses. Ex. 2 § IV. 

Not only are the “net income” numbers at issue, but more importantly, the SEC has not 

even identified what transactions are at issue. The SEC’s Complaint alleges Mr. Keener is a dealer 

because he invested in convertible notes, “converted them into newly issued shares” and “sold the 

shares in the market.” Compl. ECF No. 1, at 3 (capitalization altered). The SEC’s discovery 

responses similarly state the sales at issue are “the sales of newly-issued stocks that Defendant sold 

after making conversions of convertible notes.” Ex. 8 (1.22.21 Pl.’s Resps. to Def.’s First Set of 

Interrogs.) at 2-3. Yet it apparently now seeks to address all of Mr. Keener’s stock sales regardless 

of whether the stock was obtained through a note conversion. See, e.g., Decl. of Carmen A. Taveras 

ECF No. 67-11, ¶ 12. Mr. Flemmons is the only witness who has tested summary transaction data 

against source documents to analyze whether revenue was generated through the sale of converted 

stock, as opposed to revenues generated through some other means. Ex. 2 ¶¶ 32-33; Ex. 4 ¶¶ 32-34. 

Consequently, his testimony is relevant and necessary to identifying the transactions that are 

properly at issue in the case. 

ii. Mr. Flemmons’s First Opinion is Relevant, Reliable, and Will Help the 

Trier of Fact. 

Mr. Flemmons based his analysis on the SEC’s allegations in this case. Specifically, the SEC 

alleged Mr. Keener generated more than $20 million in “profits” from the sale of converted stock 

and identified one spreadsheet prepared by Mr. Keener’s assistant as the sole source of support for 

that “profits” number. Compl. ECF No. 1, at 2, 4, 9; Ex. 3 at 8. Thus, Mr. Flemmons analyzed the 

data in the spreadsheet, including by testing underlying source documents to verify various data 

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points, and concluded that the SEC’s allegations were demonstrably false because the “profits” 

numbers included revenue generated from sources other than converted stock, and also failed to 

account for relevant business expenses. Ex. 2 ¶¶ 34-35, 45-46. 

The SEC now feigns a lack of understanding as to why Mr. Flemmons began his analysis 

from this spreadsheet, going so far as to claim that Mr. Flemmons created a “fictional position” 

about the SEC’s allegations. Mot. at 16. One need only look at the SEC’s discovery responses in 

this case to know that is false. Ex. 3 at 8 (SEC citing this spreadsheet, Bates numbered JMJ-SEC008-000380, when asked how it arrived at the figure in the complaint). 

The SEC then claims that Mr. Flemmons’s forensic accounting opinion is not an expert 

analysis and instead employs “simple math” and “stat[es] the obvious.” Mot. at 17-18. The SEC’s 

claim makes no sense. Forensic accounting is a core area for expert testimony: it is precisely the sort 

of “technical and specialized expertise” contemplated by Rule 702 and Daubert. City of Tuscaloosa v. 

Harcros Chemicals, Inc., 158 F.3d 548, 563-64 n.17 (11th Cir. 1998). Consistent with his experience, 

expertise, and training in forensic accounting, Mr. Flemmons examined summary data and, applying 

his accounting training and expertise, tested it against hundreds of source documents and business 

records. Ex. 2 ¶¶ 32-33, 39-42, Exhibit 2, Exhibit 5. Mr. Flemmons analyzed the original 

transaction documents to assess whether “the classification of the proceeds as related [to] either a 

convertible note or other investment activity was accurate,” which requires additional expertise far 

beyond simple math. Id. ¶ 33. It is telling that the SEC proffered a summary witness to calculate 

Mr. Keener’s net profits who holds a Ph.D. in economics from the Massachusetts Institute of 

Technology—hardly a lay witness. Decl. of Carmen A. Taveras ECF No. 67-11. 

Mr. Flemmons’s analysis consists of “calculating, compiling, and explaining the costs borne 

and profits enjoyed by the defendants” which is beyond the capabilities of a layperson and will help 

the trier of fact in this case. Harcros Chemicals, 158 F.3d at 563-64 n.17. For this reason, the SEC’s 

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cases are inapposite and deal with limited records or data, not forensic accounting that involved 

testing of hundreds of source documents. See Mot. at 18 (citing Bowe v. Public Storage, No. 1:14–cv–

21559–UU, 2015 WL 11233065 (S.D. Fla. May 7, 2015) (expert who looked at limited sources); and 

Rossi v. Darden, No. 16-21199-CIV-ALTONAGA/O'Sullivan, 2017 WL 2129429 (S.D. Fla. May 17, 

2017) (expert who had not reviewed all the relevant data).) 

E. The SEC Concedes Dr. Mayhew’s Opinion Is Admissible. 

Mr. Keener seeks to introduce Dr. Mayhew’s report and testimony not on issues relating to 

liability, but solely on issues relating to remedies, should the SEC prevail on its theories of liability. 

Accordingly, there is nothing for the Court to decide as to Dr. Mayhew because the SEC does not 

dispute that Dr. Mayhew’s report and testimony are relevant and admissible when it comes to 

determining any remedies. See Mot. at 18. 

V. CONCLUSION 

The testimony of Dr. Oldfield and Mr. Flemmons is both relevant and admissible. Both 

speak to core issues in this case. Dr. Oldfield will simplify complex economic and financial concepts 

regarding convertible notes and the microcap industry for the jury. And he will speak to the 

industry practice around the dealer/trader distinction. Mr. Flemmons will address Mr. Keener’s 

profits and the specific transactions in the case, which the SEC has put directly at issue through its 

allegations. The SEC’s arguments to exclude both witnesses at bottom go to the weight that the jury 

should give to their testimony, and do not speak to the admissibility of their testimony. The SEC’s 

Daubert Motion should be denied. 

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Dated: August 27, 2021 Respectfully submitted, 

GREENBERG TRAURIG LLP

/s/ Benjamin G. Greenberg 

Benjamin G. Greenberg 

Florida Bar No. 192732 

greenbergb@gtlaw.com

333 SE 2nd Avenue Suite 4400 

Miami, FL 33131 

Telephone: (305) 579-0850 

Facsimile: (305) 579-0717 

-andBUCKLEY LLP

Christopher F. Regan (pro hac vice)

Veena Viswanatha (pro hac vice) 

Adam Miller (pro hac vice) 

2001 M Street NW, Suite 500 

Washington, DC 20036 

Telephone: (202) 349-8000 

Facsimile: (202) 349-8080 

cregan@buckleyfirm.com

vviswanatha@buckleyfirm.com

amiller@buckleyfirm.com

Counsel for Defendant Justin W. Keener 

Case 1:20-cv-21254-BB Document 84 Entered on FLSD Docket 08/27/2021 Page 22 of 23
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CERTIFICATE OF SERVICE 

I hereby certify that I have this day served via ECF a true and correct copy of the foregoing 

Defendant’s Opposition To Plaintiff’s Omnibus Daubert Motion To Exclude The Testimony Of 

George Oldfield, Jason Flemmons, And Stewart Mayhew to the following: 

Joshua E. Braunstein (Special Bar No. A5502640) 

Antony Richard Petrilla (Special Bar No. A5502641) 

Attorneys for Plaintiff 

SECURITIES AND EXCHANGE COMMISSION 

100 F Street NE 

Washington, DC 20549 

Telephone: (202) 551-8470 

Braunsteinj@sec.gov 

Attorneys for Plaintiff 

Securities and Exchange Commission 

This, the 27th day of August, 2021 

/s/ Benjamin G. Greenberg

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