IN THE UNITED STATES DISTRICT COURT

FOR THE SOUTHERN DISTRICT OF FLORIDA

SECURITIES AND EXCHANGE 

COMMISSION,

Plaintiff,

v.

JUSTIN W. KEENER D/B/A JMJ FINANCIAL, 

Defendant.

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No. 20-cv-21254 

Hon. Beth Bloom 

PLAINTIFF SECURITIES AND EXCHANGE COMMISSION’S REPLY TO 

DEFENDANT’S OPPOSITION TO ITS MOTION FOR SUMMARY JUDGMENT

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INTRODUCTION

Defendant claimed in his Motion for Summary Judgment that he is not a dealer and that 

“there is no genuine dispute as to any material fact” as to that issue. DE 71 at 8. Now, after the 

SEC has established in its Motion for Summary Judgment, that the undisputed facts show he is

operating as an unregistered dealer, Defendant completely changes course and asserts that the very 

same “record is replete with disputed facts.” DE 90 at 2. According to the plain language of the 

statute and the controlling case law, the undisputed facts establish that Defendant operated JMJ 

Financial as a commercial enterprise, the sole purpose of which was to generate profits from selling 

stock converted from the numerous convertible notes he and his employees bought from more than 

a hundred penny stock issuers. Defendant is, as a matter of law, an unregistered dealer. 

Defendant’s repeated and reworked Due Process arguments have not improved over time. 

He now admits that the statute is not vague or ambiguous. This alone substantially undermines his 

claim. He also reiterates his unpersuasive argument that in suing him, the SEC has somehow 

contradicted prior guidance. This is more of an impermissible estoppel claim than a serious fair 

notice argument. Moreover, the Guide to Broker-Dealer Registration (“Guide”) states on its face 

that it is not a source of law and that the law controls. 

Defendant finally asserts that the statute of limitations had expired when the SEC filed its 

complaint because it had a “complete and present cause of action” as early as 2010—an argument 

that the Almagarby court expressly rejected. See SEC v. Almagarby, 479 F. Supp.3d 1266, 1270-71

(S.D.Fl. 2020). The statute of limitations offers no protection for continuing violations of the law. 

Id. Where, as here, Defendant continued his dealer operations during the limitations period, the 

SEC’s action is timely under both 28 U.S.C. § 2462 and Section 21(d)(8) of the Exchange Act (and 

as extended by the one-year tolling agreement Defendant signed). (The parties agree that, for 

purposes of determining liability, the Relevant Period is “from at least January 2015 through January 

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2018. See DE 30 at ¶¶ 2, 8 (hereinafter “Answer”).)

The Court should grant the SEC’s motion for summary judgment as Defendant operated an 

established and prolific convertible notes business through which he purchased convertible notes 

and sold newly issued securities into the public market, he was not registered as a dealer, and, as a 

matter of law, he violated Section 15(a) of the Exchange Act. 

LEGAL STANDARD

“The court shall grant summary judgment if the movant shows that there is no genuine 

dispute as to any material fact and the movant is entitled to judgment as a matter of law.” Fed. R. 

Civ. P. 56(a). Where the parties have filed cross-motions for summary judgment and do not actually 

disagree as to the facts, summary judgment should be entered in favor of the party that establishes, 

as a matter of law, that Defendant was an unregistered dealer in violation of Section 15(a). See 

Almagarby, 479 F.Supp.3d at 1270 (citing Clark v. Coates & Clark Inc., 929 F.2d 604, 608 (11th Cir. 

1991). To the extent Defendant now has changed his position and asserts that material facts are in 

dispute, he must “set forth specific facts showing that there is a genuine issue for trial.” Id. (citing 

Anderson v. Liberty Lobby Inc., 477 U.S. 242, 248 (1986). Defendant has failed to meet his burden. 

UNDISPUTED FACTS

Defendant does not dispute any of the following facts: He does business under the “fictitious 

name” JMJ Financial (registered in Florida in 2008). DE 88 at ¶ 4 (Defendant’s Opposition 

Statement of Facts (“DSMF”)). He had offices in Miami, Florida, San Diego, California, and San 

Juan, Puerto Rico. Id. at ¶ 5. Defendant spent $1,997,248 in 2014, $2,695,185 in 2015, $2,428,808 in 

2016, and $1,629,300 in 2017 on employee payroll. Id. at ¶ 7. 

Defendant has never registered with the SEC as a securities dealer. Id. at ¶ 2. He bought 

securities in the form of convertible notes from issuers from at least January 2015 through January 

2018. Answer at ¶¶ 2, 8. He personally negotiated the terms for these convertible notes and signed 

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the contracts. DSMF ¶ 9. He converted the notes to stock of the issuer. Answer ¶ 2 (“Defendant 

further admits that he converted more than 100 such notes from more than 100 different microcap 

issuers during the Relevant Period.”); id. at ¶ 8; DSMF ¶ 29. He received stock from these 

conversions at a discount to the prevailing market price. DSMF ¶ 15 (Keener stated convertible 

notes from 2014 to 2016 generally had a “10 percent discount to 40 or 50 percent discount”). The 

converted stock was newly issued. DE 71 at 22 (Def. MSJ) (“Convertible notes are, by definition, a 

way for new stock to come into the market.”). He sold “billions” of shares of that converted stock 

in the market. Answer ¶¶ 1, 2, 8, 18; see also DSMF ¶¶ 30-33. 

Defendant advertised his interest in buying convertible notes. From at least 2015 through 

2017, he operated a website that described a type of convertible note that he was willing to purchase 

called a “QuickLoan.” DSMF ¶¶ 11, 44. He issued press releases that made statements such as 

“JMJ Financial’s primary investment vehicle, the QuickLoan, allows small publicly-traded companies 

the ability to access up to $500,000 utilizing a simple two-page promissory note” and “Keener and 

JMJ Financial have committed $20,000,000 to unsecured investments in 2016.” Id. at ¶ 54. He had 

employees who contacted “hundreds” of companies to inquire whether they could sell him 

convertible notes. Id. at ¶¶ 50, 64. 

Defendant sponsored and, with his employees, attended approximately 10 industry 

conferences in 2016 to “network[]” and meet “companies who are seeking investors.” Id. at ¶ 51, 

53. He hosted a dinner at Nobu Restaurant in Las Vegas for 24 “brokers and finders” on April 13, 

2015. Id. at ¶ 56. He held a “Partner Seminar” at the Wynn Hotel in Las Vegas on August 14, 2015. 

Id. at ¶ 58. He held a “Broker and Finder Seminar” at the Wynn Hotel on April 8, 2016, where he 

covered all expenses for attendees, including the cost of accommodations and airfare. Id. at ¶ 59. At 

both Wynn Hotel events, he made a presentation that included a notarized affidavit of his CFO 

Conrad Nagel stating that JMJ Financial had “in excess of $20,000,000 in liquid cash and cash 

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equivalents that is immediately available for investment into small cap emerging companies.” Id. at ¶ 

60. He took business deductions of $103,399, $101,701, and $67,407 on his 2014, 2015 and 2016 

federal tax returns for the costs of sponsoring and sending his employees to industry conferences as 

well as sponsoring JMJ-branded conferences. Id. at ¶ 63. He also sent issuers branded “JMJ 

Financial” coffee mugs and jelly beans. Id. at ¶ 66.

ARGUMENT

A. The Undisputed Facts Show That The SEC Is Entitled To Summary Judgment

Despite arguing in his Motion for Summary Judgment that “there is no genuine dispute as to 

any material fact” (DE 71 at 8), Defendant now asserts at least a dozen times that, the same factual record,

is replete with disputed facts. (DE 90 at 2, 4, 12, 14, 15, 17-19, 22-23, 25-26, 30). Contrary to 

Defendant’s change in position, the undisputed material facts set forth above, are more than 

sufficient to demonstrate that he violated Section 15(a)(1) of the Exchange Act by not registering 

with the SEC as a dealer. The Court should apply the plain language of the statute and the 

controlling precedent in the Eleventh Circuit, Big Apple and Eastside Church.

1

 The result would be the 

same even if the Court were to apply only factors from SEC Guide, as Defendant urges it to do. See 

SEC Opp. Def. MSJ, DE 89 at 14-20. 

Defendant continues to insist that the factors contained in the Guide are the law2 and claims 

that the SEC “ignores the content, purpose, or actual language of the statute.” DE 70 at 7-8. To 

 1 See SEC v. Big Apple Consulting USA, Inc., 783 F.3d 786, 809-10 (11th Cir. 2015); Eastside 

Church of Christ v. National Plan, Inc., 391 F.2d 357, 361-63 (5th Cir. 1968). 2 In asserting that the factors supplant the plain language of the statute and the controlling 

case law interpreting it, Defendant continues to rely, erroneously, on cases that defer to an agency’s 

interpretation of its own regulations. DE 90 at 10 (citing El Badrawi v. U.S., 787 F.Supp. 2d 204 

(D.Conn. 2011); Summit Petroleum v. EPA, 690 F.3d 793 (6th Cir. 2012). These two additional cases 

are inapposite. Where, as here, a court is interpreting a federal statute, and not an agency regulation, 

the plain language controls, Kaiser Aluminum & Chem. Corp. v. Bonjorno, 494 U.S. 827, 835 (1990). The 

Court not the agency is the ultimate arbiter of the statutory language. FTC v. Wyndham Worldwide 

Corp., 799 F.3d 236, 251 (3d Cir. 2015) (citing Skidmore v. Swift & Co. 323 U.S. 134, 140 (1944). 

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the contrary, the SEC has consistently applied the plain language of the statute that defines a dealer 

as “any person engaged in the business of buying and selling securities ... for such person’s own 

account through a broker or otherwise.” 15 U.S.C. §78o(a)(1). The Eleventh Circuit defines the 

operative phase “engaged in the business” as a “commercial enterprise carried on for profit, a 

particular occupation or employment habitually engaged in for livelihood or gain.” Big Apple, 783 F.3d 

at 809 (emphasis in original). A dealer is one whose “entire business model was predicated on the 

purchase and sale of securities,” “where they bought ‘stocks at deep discounts’ by contractual 

agreement” and “then resold those stocks for profit.” DE 29 at 9-10 (order denying motion to 

dismiss) (quoting Big Apple, 783 F.3d at 809-10) (emphasis in original). 

It is undisputed that Defendant bought numerous convertible notes, converted them into 

stock, and sold the shares in the market to earn profits. Answer ¶¶ 1, 2, 8, 18; DSMF ¶¶ 29-33. In 

his own words, he “converted more than 100 [convertible] notes from more than 100 different 

microcap issuers” over a three year period and sold “billions” of the resulting shares into the market. 

Answer ¶¶ 1, 2, 8, 18; see also DSMF ¶¶ 30-33. Defendant acquired stock directly from the issuers at 

a substantial discount to the prevailing market price pursuant to the contract terms of the 

convertible notes. DSMF ¶ 15 (discounts ranged up to 50%).3 These facts make clear that 

Defendant operated a commercial enterprise through which he purchased and sold securities for 

livelihood or gain, and at no point in this case has he even suggested otherwise. Except for operating 

a much larger securities business, he is no different than the dealer-defendant in Almagarby. See 479 F. 

 3 Defendant erroneously claims that there is no authority, other than Big Apple, for the 

proposition that obtaining discounted stock from the issuer is indicative of dealer activity. DE 90 at 

19. The SEC has consistently cited In the Matter of Gordon Wesley Sodorff, Jr., 50 S.E.C. 1249, 1992 WL 

224082, at *4-5 (Sept. 2, 1992), in which the court considered discounts in finding the defendant was 

a dealer twenty-nine years ago, see 1992 WL 224082, at *5. Other courts have done so more recently as 

well. See SEC v. River North Equity LLC, 415 F. Supp. 3d 853, 858-59 (N.D. Ill. 2019) (finding it 

“particularly significant” that defendant purchased stock directly from the issuers at a discounted 

price); Almagarby, 479 F. Supp. 3d at 1272 (same). 

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Supp. 3d at 1268 (MEG, Almagarby’s company, “simultaneously obtained convertible debentures or 

convertible notes ... from the Issuers whose debt MEG had agreed to purchase, which gave MEG 

the right to convert the convertible debentures, or any portion of them, into discounted shares of 

the Issuer”).

Defendant alleges that none of the facts that the SEC relies upon to show that he meets the 

operative language of the statute—“engaged in the business” —are relevant. DE 90 at 13-16. 

Rather than dispute these facts, Defendant claims “there is no basis in the law” for even considering 

that he “rented office space” in three separate locations; “had employees and contractors;” 

advertised his services on the internet and at conferences; engaged in a significant volume of 

transactions; and “created a computer system to find, manage, and account for investments.” Id. 

Similarly, Defendant insists that whether these activities make him a dealer is an issue for the jury. 

Id. He is incorrect. The plain language of the statute, “engage in the business,” makes these 

undisputed facts and others relevant and allows the Court to determine that Defendant, as a matter 

of law, was operating as an unregistered dealer. The strict application of the law to the undisputed 

facts is appropriate for summary judgment. See Almagarby, 479 F.Supp.3d at 1279. 

Separately, Defendant challenges whether the distribution of newly issued securities into the 

market is relevant to the inquiry. DE 90 at 17. Defendant does not dispute that the stock he sold 

from convertible notes was newly issued. DE 71 at 22 (Def. MSJ). As he put it, “[c]onvertible notes 

are, by definition, a way for new stock to come into the market.” Id. Courts and the SEC have 

found this practice to be relevant. See, e.g., River North, 415 F. Supp. 3d at 858 (finding it “particularly 

significant” that...like an underwriter, River North purchased stocks at a discounted price directly 

from numerous issuers...(instead of purchasing stocks already in the marketplace, like a trader)” and 

“turned a profit not from selling only after market prices increased (like a trader), but rather from 

quickly reselling at a marked-up price”) (citing Sodorff, 1992 WL 224082, at *5 (“Unlike an investor 

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or trader, Sodorff’s profits did not result from appreciation in the value of the securities, but rather 

from his markup over the price he paid.”)). 

Defendant attempts to confuse the Securities Act and the Exchange Act by claiming that he 

was not an underwriter by virtue of his compliance with Rule 144, which is a “safe harbor” against 

underwriter status for the purpose of reselling unregistered securities in the market. DE 90 at 17. 

While the Rule freed him from having to file a registration statement before selling stock from 

notes, it did not change the fact that he still participated in the “sale or distribution of new issues.”4 

Defendant attempts to distinguish Big Apple on two grounds: (1) that the case is “silent . . . 

on whether it is relevant that the stock was acquired ‘directly from the issuer’”; and (2) that Big Apple

interpreted the definition of dealer under the Securities Act of 1933 and not the Exchange Act, so its 

holding is mere dicta. DE 90 at 20-21. First, Big Apple was far from silent about the relevance of 

acquiring stock directly from the issuer: The court stated, “As further evidence of their dealer status, 

Big Apple and MJMM purchased CyberKey stocks at deep discounts pursuant to its contractual 

agreement with CyberKey and then sold those stocks for profit.” 783 F.3d at 809-10 (emphasis 

added). Second, this Court has already dispensed with the argument that Big Apple’s treatment of the 

definition of “dealer” does not concern the Exchange Act. See DE 29 at 10 n. 2. Defendant’s effort 

to distinguish Almagarby—on the ground that the defendant there “did not obtain convertible notes 

directly from the issuer” (DE 90 at 20)—is equally unavailing, and rests on an incorrect reading of 

the case. See Almagarby, 479 F. Supp. 3d at 1268 (Almagarby’s company “obtained convertible 

debentures or convertible notes ... from the Issuers”).

Defendant erroneously claims that the SEC’s motion should be denied because it cannot 

 4 See Definition of Terms in and Specific Exemptions for Banks, Savings Associations, and 

Savings Banks Under Sections 3(a)(4) and 3(a)(5) of the Securities Exchange Act of 1934, SEC Rel. 

No. 34-47364, 2003 WL 328058, at *4 (Feb. 13, 2003) (emphasis added). Indeed, the Commission 

stated explicitly that having an exemption from registration, such as that under Rule 144, would not 

necessarily change its view of the seller’s status as an underwriter and thus a dealer. Id. at n. 21.

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meet the factors in the Guide. DE 90 at 10-11. Even if the Court were to apply only the factors set 

forth in the Guide, in lieu of the plain language of the statute, he would fare no better. As this 

Court has observed, the Guide indicates that a person may need to register as a dealer if they meet 

even one factor. See DE 29 at 7.5 As the Court noted, Defendant held himself out to the public as 

being willing to buy convertible notes at a regular place of business. See DE 29 at 9. 

Defendant asserts that this factor required him to advertise not only that he bought 

securities, but that he also sold them. DE 90 at 11. This is an overly narrow reading of the factor, 

not to mention the statute.

6

 Still, he made clear his intent to sell in at least two ways. First, his 

website stated that he would work with issuers on “Registered Financings,” through “registration 

statements filed by the issuer.” DE 67-9 at 13; see DSMF ¶ 43. The purpose of a “registration 

statement” is to sell securities to the public. See 17 C.F.R. § 239.11 (registration statement on Form 

S-1). Second, and more compelling still, Defendant promised “[g]entle conversions and equity sales 

over time” to reassure issuers that he would not convert all the notes to equity and sell all the shares 

at once.7 See DE 72 at 133:23-135:8 (Keener Dep.). 

Defendant is a dealer, as a matter of law, whether the Court applies the plain language of the 

statute, the controlling precedent, or one or more factors set forth in SEC staff guidance.

B. Defendant’s Due Process Argument Fails 

Defendant continues to insist that he lacked fair notice of the law, but no longer even 

 5 See also River North, 415 F. Supp. 3d at 858 (the factors are “neither exclusive, nor function 

as a checklist through which a court must march to resolve a dispositive motion”). 

6 Of course, advertising that one is interested in buying convertible notes effectively 

advertises that one will sell the stock that results from them after conversion. See DE 72-26 at 

104:10-17 (Defense expert stated that Defendant plays a role in distributing shares of issuers he 

deals with to the public). 7 “Gentle conversions” was a major selling point for Defendant that appeared in his 

PowerPoint presentations to finders (DE 72-2 at 386, 396, 402, 406), as well as in the form letters 

and scripts in his Loan Servicing Manual, which included the references that JMJ would “endeavor 

to be very graceful and gentle in our stock liquidations.” DE 72-2 at 486; see also id. at 484. 

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implies that the statutory language is vague or ambiguous. DE 90 at 23. Defendant accordingly 

makes no attempt to meet the requirements of challenging the clarity of any statute. See City of South 

Miami v. DeSantis, 408 F. Supp. 3d 1266, 1303 (S.D. Fla. 2019) (quoting Village of Hoffman Estates v. 

Flipside, Hoffman Estates, Inc., 455 U.S. 489, 494 n.7 (1982). Thus, his claim must fail. 

Instead, Defendant returns to his original, and seriously flawed, Due Process fair notice 

argument that in suing him, the SEC has somehow abandoned and now “directly contradicts its prior 

guidance.” DE 90 at 23. The SEC has fully responded to this argument and asks that the Court 

incorporate its prior arguments here, including from its opposition to Defendant’s motion for 

summary judgment. DE 89 at 20-24; see also DE 97 at 2-5. At bottom, Defendant’s quarrel with this 

case turns, not on the objective notice requirement, but on Defendant’s mistaken belief that he has 

been singled out. In other words, this is no more than an impermissible, estoppel argument 

masquerading in due process garb. See DE 89 at 23.

C. The Statute of Limitations Does Not Bar The SEC’s Complaint 

Defendant claims that penalties and disgorgement are time-barred under 28 U.S.C. § 2462 

because the new limitations periods specified in the National Defense Authorization Act for Fiscal 

Year 2021 (“NDAA”) do not apply to this case and the tolling agreement that he signed is 

ineffective because Section 2462 is jurisdictional and cannot be waived. DE 90 at 26-27; see NDAA, 

Pub. L. No. 116-283 (2021). He also asserts that under Gabelli v. SEC, 568 U.S.C. 442, 448 (2013), 

the statute began to run as early as July 2010, when the SEC had a “complete and present cause of 

action.” Id. at 27. Defendant is mistaken. 

Even assuming that the NDAA and Defendant’s tolling agreement do not apply—and they 

do—the SEC’s action was timely filed. The SEC filed its Complaint on March 24, 2020. Under 

Section 2462, the SEC is entitled to relief for conduct that occurred on or after March 24, 2015. 

The SEC’s complaint charges conduct from “at least January 2015 through January 2018” and, 

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therefore, is not time barred. DE 1 at 1. Defendant claims that the statute of limitations began to 

run “more than five years before the Complaint was filed” because he was conducting operations as 

early as July 2010. DE 90 at 29. The Almagarby court addressed the same “first accrual” argument 

and soundly rejected it, reasoning that so long as “at least some [of] the violative conduct occurred 

within the limitations period,” Section 2462 does not preclude relief. 479 F.Supp.3d at 1271. 

Defendant admits that he engaged in his convertible note business as late as January 2018, which 

was 26 months before the SEC filed its Complaint. See Answer ¶¶ 2, 8. The SEC’s cause of action 

thus had not expired when it filed the Complaint.

Defendant erroneously insists that because his action was time barred at the time the 

Complaint was filed—and it was not—the NDAA cannot revive the claim. Because the SEC’s claim 

was timely at the time the Complaint was filed, Berman v. Blount Parrish & Co., 525 F.3d 1057, 1058-

59 (11th Cir. 2008) does not apply, and the limitations periods in the NDAA apply to this case. See

DE 68 at 27-28 (SEC MSJ listing the applicable statute of limitations under the NDAA).

Finally, Defendant contends that his signed tolling agreement does not preserve an extra 

year of violative conduct—from March 24, 2014 to March 24, 2015—because Section 2462 is a 

jurisdictional statute. DE 90 at 20 (citing SEC v. Graham, 21 F. Supp. 3d 1300, 1308-11 (S.D. Fla. 

2014)). Undermining this position, the Eleventh Circuit declined to adopt the district court’s 

conclusion in Graham that Section 2462 is jurisdictional. SEC v. Graham, 823 F.3d 1357, 1360 n.1 

(11th Cir. 2016). Further, the Graham district court held that the Court could not enlarge the statute 

of limitations based upon the “discovery rule”; not that the parties could not agree to toll the statute 

of limitations. 21 F. Supp. 3d at 1308-11; see also SEC v. Fowler, 6 F.4th 260, n.5 (2d Cir. 2021) 

(finding Section 2462 not jurisdictional and tolling agreement valid).

CONCLUSION

For the foregoing reasons, the Court should grant the SEC’s Motion for Summary Judgment.

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DATE: September 7, 2021 Respectfully submitted, 

By: 

 /s/Joshua E. Braunstein 

 Joshua E. Braunstein

Antony Richard Petrilla

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 

 

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CERTIFICATE OF SERVICE

 

I hereby certify that on September 7, 2021, I filed Plaintiff Securities And Exchange 

Commission’s Reply to Defendant’s Opposition to Motion for Summary Judgement through the 

Court’s CM/ECF system, which automatically sends notices to counsel of record in this case. 

 /s/Joshua E. Braunstein

 Joshua E. Braunstein

ATTORNEY FOR PLAINTIFF 

SECURITIES AND EXCHANGE 

COMMISSION 

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