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 JUSTIN W. KEENER’S OPPOSITION TO PLAINTIFF SECURITIES 

AND EXCHANGE COMMISSION’S MOTION FOR SUMMARY JUDGMENT 

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TABLE OF CONTENTS 

I. Introduction ............................................................................................................................................... 1

II. Factual Background .................................................................................................................................. 4

A. Mr. Keener is a Private Investor and Does Not Have a Dealer Business ................................... 4

B. Mr. Keener Did Not “Hold Himself Out to the Public as Being in the Business of 

Buying and Selling Securities” ............................................................................................................ 5

C. Mr. Keener Did Not Profit from his Convertible Notes Investments ........................................ 5

D. The SEC’s “Facts” Are Unsupported and Disputed ...................................................................... 5

III. Legal Standard ...................................................................................................................................... 6

IV. Argument ............................................................................................................................................... 7

A. The SEC’s Statement of the Governing Law is Wrong ................................................................. 7

B. The SEC Cites Only Disputed, Unsupported, or Immaterial Facts ........................................... 13

C. Big Apple and Almagarby Do Not Support the SEC’s Position .................................................... 20

D. Mr. Keener’s Affirmative Defenses Present Disputed Facts for the Jury ................................. 22

V. Conclusion ............................................................................................................................................... 30

I. Introduction............................................................................................................................. 1

II. Factual background.................................................................................................................. 4

A. Mr. Keener is a Private Investor and Does Not Have a Dealer Business ........................... 4

B. Mr. Keener Did Not “Hold Himself Out to the Public as Being in the Business of Buying 

and Selling Securities” ................................................................................................................ 5

C. Mr. Keener Did Not Profit from his Convertible Notes Investments ................................. 5

D. The SEC’s “Facts” Are Unsupported and Disputed ........................................................... 5

III. legal standard ....................................................................................................................... 6

IV. argument.............................................................................................................................. 7

A. The SEC’s Statement of the Governing Law is Wrong ...................................................... 7

1. The SEC’s Interpretation is Not Supported by the Language, Context, and History of 

the Exchange Act .................................................................................................................... 7

2. The SEC Ignores the Dealer Factors While Also Conceding Mr. Keener Does Not 

Meet Them ............................................................................................................................ 10

B. The SEC Cites Only Disputed, Unsupported, or Immaterial Facts .................................. 13

1. That Mr. Keener Incurred Investment Expenses is Irrelevant .................................... 13

2. Mr. Keener’s Limited Social Media Presence and Conference Attendance is 

Irrelevant ............................................................................................................................... 14

3. The Volume of Mr. Keener’s Trading Activity is Irrelevant ..................................... 16

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4. That the Stock was New to the Market Did Not Make Mr. Keener an Underwriter or 

Dealer .................................................................................................................................... 17

5. The Conversion Discount is Irrelevant ....................................................................... 18

C. Big Apple and Almagarby Do Not Support the SEC’s Position ....................................... 20

D. Mr. Keener’s Affirmative Defenses Present Disputed Facts for the Jury ......................... 22

1. The SEC Is Not Entitled to Summary Judgment on Fair Notice ................................ 22

2. The SEC is Not Entitled to Summary Judgment on Statute of Limitations ............... 26

V. conclusion .............................................................................................................................. 30

TABLE OF AUTHORITIES 

 Page(s) 

Cases 

Anderson v. Liberty Lobby, Inc., 

477 U.S. 242 (1986) ..................................................................................................................................... 6

Berman v. Blount Parrish & Co., 

525 F.3d 1057 (11th Cir. 2008) .............................................................................................................. 26

Boneta v. Am. Med. Sys., 

No. 20-CIV-60409-RAR, 2021 WL 917871 (S.D. Fla. Mar. 10, 2021) ............................................. 30

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Chapel Invs., Inc. v. Cherubim Ints., Inc., 

177 F. Supp. 3d 981 (N.D. Tex. 2016) ................................................................................................... 10

Christian Coal. of Fla., Inc. v. United States, 

662 F.3d 1182 (11th Cir. 2011) ............................................................................................................... 29

Christopher v. SmithKline Beecham Corp., 

567 U.S. 142 (2012) ...................................................................................................................... 23, 24, 26 

Diebold Inc. v. Marshall, 

585 F.2d 1327 (6th Cir. 1978) ................................................................................................................. 26

Donander Co. v. C.I.R., 

29 B.T.A. 312 (U.S. Bd. Tax Appeals, Nov. 8, 1933) ............................................................................ 7

El Badrawi v. United States, 

787 F. Supp. 2d 204 (D. Conn. 2011) .................................................................................................... 10

FCC v. Fox TV Stations, Inc., 

567 U.S. 239 (2012) ................................................................................................................................... 24

Gabelli v. SEC, 

568 U.S. 442 (2013) ................................................................................................................................... 27

Johnson v. Winslow, 

279 N.Y.S. 147 (Sup. Ct. 1935) ................................................................................................................. 8

Kirtsaeng v. John Wiley & Sons, Inc., 

568 U.S. 519 (2013) ................................................................................................................................... 21

Kokesh v. SEC, 

137 S. Ct. 1635 (2017) .............................................................................................................................. 27

KPMG, LLP v. SEC, 

289 F.3d 109 (2002) .................................................................................................................................. 25

Maxwell v. Carnival Corp., 

No. 19-cv-23043-BLOOM/Louis, 2021 WL 1969967 (S.D. Fla. Mar. 18, 2021) ............................. 7

Mosley v. Progressive Am. Ins. Co., 

No. 14-cv-62850-BLOOM/Valle, 2018 WL 6171417 (S.D. Fla. Nov. 25, 2018) ........................... 13

Papachristou v. City of Jacksonville, 

405 U.S. 156 (1972) ................................................................................................................................... 25

Rothenberg v. Daus, 

481 F. App’x. 667 (2nd Cir. 2012) .......................................................................................................... 25

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SEC v. Almagarby, 

479 F. Supp. 3d 1266 (S.D. Fla. 2020) ................................................................................ 20, 21, 22, 25

SEC v. Big Apple Consulting, 

783 F.3d. 786 (11th Cir. 2015) ............................................................................................. 19, 20, 21, 25

SEC v. Federated All. Grp., 

No. 93-CV-0895E(F), 1996 WL 484036 (W.D.N.Y. Aug. 21, 1996) ................................................ 10

SEC v. Feng, 

935 F.3d 721 (9th Cir. 2019) .................................................................................................................... 12

SEC v. Fiero, 

No. 20-2104 (MAS) (DEA), 2020 WL 7481773 (D.N.J. Dec. 18, 2020) .......................................... 22

SEC v. Graham, 

21 F. Supp. 3d 1300 (S.D. Fla. 2014) .............................................................................................. 28, 29

SEC v. Graham, 

823 F.3d 1357 (11th Cir. 2016) ............................................................................................................... 28

SEC v. Kovzan, 

No. 11–2017–JWL, 2012 WL 4819011 (D. Kan. Oct. 10, 2012) ....................................................... 26

SEC v. Kramer, 

778 F. Supp. 2d 1320 (M.D. Fla. 2011) .................................................................................................. 10

SEC v. River North, 

415 F. Supp. 3d 853 (N.D. Ill. 2019) ...................................................................................................... 22

Seminole Tribe of Florida v. Florida, 

517 U.S. 44 (1996) ..................................................................................................................................... 21

Skop v. City of Atlanta, 

485 F.3d 1130 (11th Cir. 2007) ............................................................................................................... 15

Summit Petroleum v. EPA, 

690 F.3d 733 (6th Cir. 2012) .................................................................................................................... 10

Taggart v. Lorenzen, 

139 S. Ct. 1795 (2019) ................................................................................................................................ 7

United States v. Harra, 

985 F.3d 196 (3d Cir. 2021) ..................................................................................................................... 25

Upton v. SEC, 

75 F.3d 92 (2d Cir. 1996) ............................................................................................................ 23, 24, 25

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Statutes 

15 U.S.C. § 77b(a)(12) ..................................................................................................................................... 21

15 U.S.C. § 78c(a)(5) ....................................................................................................................................7, 21

28 U.S.C. § 2462 .................................................................................................................................. 27, 28, 29

National Defense Authorization Act (“NDAA”), Pub. L. No. 116-283 (2021), §§ 

6501 ............................................................................................................................................................. 26

Other Authorities 

17 C.F.R. § 230.144 ................................................................................................................................... 17, 18 

Guide to Broker-Dealer Registration, 

http://www.sec.gov/divisions/marketreg/bdguide.htm .................................................. 2, 11, 15, 20 

H.R. Rep. No. 94-123, 94th Cong. 1st Sess., H.R. 4111 (1975) .................................................................. 8

Guy P. Lander, U.S. Securities Law for International Financial Transactions and Capital 

Markets (Nov. 2020) ................................................................................................................................. 16

Many are Chasing the Stock Market By Day Trading in the Pandemic, CNBC, Sept. 21, 2020 

(https://tinyurl.com/a2zu5kuh) ............................................................................................................... 9

Mary Jo White, “Enhancing Our Equity Market Structure,” (June 5, 2014) 

(https://tinyurl.com/4war8xjr) ............................................................................................................... 16

Proposed Rule, SEC Release No. 34-46745, 2002 WL 31428622 (Oct. 30, 2002) ................................ 12

Revision of Holding Period Requirements in Rules 144 and 145, SEC Release No. 

33-7390, 1997 WL 70606 (Feb. 28, 1997). ............................................................................................ 18

SEC No-Action Letter, Fairfield Trading Corp., 1988 WL 233618 (Dec. 10, 1987) ............................. 12

SEC Release No. 34-11742, 1975 WL 163406 (Oct. 15, 1975) ................................................................. 10

SEC Release No. 34-40594, 63 Fed. Reg. 59362, 59370 n.61 (Nov. 3, 1998) ....................................... 10

SEC Release No. 34-47364, 68 Fed. Reg. 8686, 8689, n.26 (Feb. 24, 2003) .......................................... 10

SEC Release No. 34-63452, 75 Fed. Reg. 80,174 (Dec. 21, 2010) .......................................................... 10

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I. INTRODUCTION 

The SEC’s brief reads as though the SEC has never said a word about the Exchange Act 

dealer registration requirements in the past 80 years, and has always maintained that the meaning of 

the statutory language is obvious. The SEC never once reveals to the Court that it has advised the 

public on dozens of occasions in formal statements that the analysis of whether a person is a dealer 

is a complex, fact-intensive analysis that depends on whether up to a dozen factors are met. Nor 

does it reveal what the factors are or that the SEC’s own website has advised the public to examine 

those factors for the past fourteen years. The reason for the SEC’s omission is clear: Mr. Keener 

does not meet a single factor. The factors all focus on whether a person interacts with and provides 

services to the investing public, or otherwise acts as a market maker by actively quoting buy and sell 

prices to the public. Mr. Keener does not do any of these things. He invests his own money, makes 

all of his own investment decisions, and does not interact with the investing public at all. For this 

reason alone, the SEC’s motion for summary judgment must be denied. 

The SEC claims its argument is based on the “plain language” of the Exchange Act. But in 

reality, it asks the Court to adopt an interpretation that is nowhere in the plain language. The SEC’s 

brief does not actually interpret the plain language—i.e., what it means to “engage in the business” 

of dealing. Although at first glance, the SEC asks the Court to interpret “business” to encompass 

everyone who makes a living from buying and selling securities, it quickly walks away from this 

position—as the SEC itself must recognize, this interpretation would go too far and would sweep in 

millions of unregistered persons and firms. Instead, the SEC asks this Court to read the statute to 

say Mr. Keener is a dealer because he “bought . . . convertible notes from penny stock companies, 

converted those notes into shares of stock . . . and sold those newly issued shares into the market.” 

Pl.’s Mot. for Summ. J. Br. (“Br.”) at 1. On its face, that is not an argument based on the actual 

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“plain language.” To the contrary, the SEC asks the Court to adopt new factors—ones not set forth 

in any prior guidance—to single out convertible notes and the microcap industry for attack. 

That the SEC asks the Court to ignore the existing factors and adopt new ones is 

fundamentally unfair. To this day, when market participants ask the SEC questions about whether 

they have to register as securities dealers, the SEC advises them to look at the factors published in 

the SEC’s Guide to Broker-Dealer Registration (the “Guide”) (https://tinyurl.com/88xycezk), 

because these are the factors that “the courts consider when determining whether a person” is a 

dealer: 

The staff of the Division of Trading and Markets has published some guidance on the 

Commission’s website regarding the broker-dealer registration requirements here: 

http://www.sec.gov/divisions/marketreg/bdguide.htm. This Guide to Broker-Dealer 

Registration provides some basic information regarding the definitions of ‘broker’ and 

‘dealer’ and the activities/factors the staff and the courts consider when determining 

whether a person fits that definition . . . . This is a fact-specific assessment that involves 

consideration of a number of factors (which have been developed through SEC staff no 

action letters and case law).” 

Def.’s Statement of Material Facts ISO Mot. for Summ. J. (“DSOF”) Ex. 73 (SEC-JMJ-OIG-109) 

ECF No. 73-24, at 1 (emphasis added). That is, the SEC in its official correspondence with the 

public acknowledges that courts conduct a “fact-specific assessment” based on the factors set forth 

in the Guide. Yet it asks this Court to be the exception. The SEC’s argument must fail. 

Mr. Keener is entitled to a jury trial on whether his investment activity qualified as dealer 

activity under the factors. The record is replete with disputed facts, and all reasonable inferences at 

this stage must be drawn in Mr. Keener’s favor. For instance: 

 The SEC claims investments in convertible notes with a conversion discount is typical dealer 

activity; Mr. Keener’s position is that convertible notes are extremely common and many 

investors not registered as dealers hold similar or identical convertible notes to Mr. Keener. 

 The SEC claims Mr. Keener’s use of social media demonstrated he was a dealer; Mr. Keener 

contends that 20 Tweets over a 3-year period do not suffice to demonstrate anything. 

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 The SEC claims Mr. Keener “distributed” newly issued stock and thus acted as an 

underwriter; Mr. Keener’s position is that he did no such thing and has hundreds of attorney 

opinion letters confirming he did not act as an underwriter. 

 The SEC claims Mr. Keener would “promptly resell” stock; Mr. Keener’s position is that 

selling six months or more after his initial investment does not qualify as “promptly,” 

especially when an SEC Rule (Rule 144) provides that a six-month holding period is long 

enough to demonstrate the stock is being held for investment purposes. 

 The SEC claims Mr. Keener had $33 million in net income from sales of converted stock; 

Mr. Keener’s position is he had net losses, not profits. 

This is all the more so when the SEC seeks summary judgment by unsupported 

generalization and ambush. First, although the SEC alleges 200 or more convertible notes are at 

issue in the case, it refuses to identify the specific sales it believes required Mr. Keener to register 

and does not even explain the details of any one specific note or transaction. While it purports to 

explain how all of the sale transactions worked—claiming all the stock resulted from discounted 

conversions of convertible notes and was sold immediately upon receipt—that description does not 

even match the few transactions cited in the SEC’s Complaint or summary judgment motion. For 

instance, Mr. Keener held his investment in Lithium Exploration Group (Compl. ¶ 15.a) for over 

three years, and many shares were not even obtained through a conversion discount. Def. 

Counterstatement of Disputed Facts in Response to Pl. SEC Statement of Material Facts (“CSOF”) 

¶ 18. The same is true for his investment in Blink Charging Co. Id. ¶¶ 12, 36. The SEC’s other 

tactic is ambush: it revealed for the first time in its brief that it seeks to hold Mr. Keener liable based 

on an allegation that he made $33 million in “net income.” The SEC cites a purported income 

analysis prepared by its own employee, an analysis the SEC previously refused to turn over, even at 

that employee’s deposition during the last week of fact discovery. More importantly, the analysis is 

wrong, and excludes such basic information as the expenses that went into generating that income. 

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In sum, the SEC cannot win on summary judgment and overcome Mr. Keener’s right to a 

jury trial based on unsupported and disputed facts it refused to provide in discovery and a wrong 

interpretation of the law. The SEC’s summary judgment motion must be denied. 

II. FACTUAL BACKGROUND 

A. Mr. Keener is a Private Investor and Does Not Have a Dealer Business 

Mr. Keener is an investor. For a brief, two-year period, he was an active investor. CSOF ¶ 

11. At that time, he invested in a number of convertible notes—loans to companies that Mr. 

Keener could convert into stock in some circumstances. Id ¶¶ 14-15; Def. Additional Facts in 

Response to Pl. SEC Statement of Material Facts (“ASOF”) ¶ 1. Mr. Keener referred to these notes 

as QuickLoans, because they were relatively small dollar value loans that Mr. Keener could fund 

quickly. CSOF ¶ 11; ASOF ¶ 1. He hired assistants to help him identify, execute, and account for 

these QuickLoan investments because they required a lot of work. CSOF ¶¶ 6, 20, 47. Before Mr. 

Keener could convert QuickLoans into stock, he would have to meet substantial compliance 

requirements imposed by the companies’ transfer agents, as well as the broker-dealers and clearing 

firms that held his securities accounts. ASOF ¶¶ 16-21. Tracking and accounting for the 

investments was also complex because he held the investments for six months or more, and some of 

the companies had volatile performance and even went bankrupt while Mr. Keener was holding his 

investment. CSOF ¶ 18 (describing losses on ALLM and SFEG); ASOF ¶¶ 3-5. 

Mr. Keener made all of his own investment decisions—including whether and how much 

money to invest in a company, whether to convert notes into stock, and whether to sell stock. 

ASOF ¶¶ 7, 10, 17. He did not have any customers. Id. ¶ 8. A customer is a person who “buys 

goods or services from a store or business.” See Oxford English Dictionary 

(https://tinyurl.com/468fwtfu). He did not sell goods or services to anyone—all of his stock sales 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 10 of 38
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were conducted by his brokerage firms, he never solicited any buyers or sellers from the investing 

public, and he never provided any services to any investors at all. ASOF ¶¶ 9, 12-13, 16. 

B. Mr. Keener Did Not “Hold Himself Out to the Public as Being in the 

Business of Buying and Selling Securities” 

Mr. Keener did take steps to establish credibility with companies as an investor and 

demonstrate that he had a track record of making successful investments. For instance, he had a 

website that indicated he made investments in microcap companies, and he and his assistants 

attended a handful of investor conferences for networking and education. CSOF ¶¶ 42-43, 51. 

Through these efforts, he repeatedly portrayed himself as a private investor in microcap companies. 

ASOF ¶ 1. And he never held himself out to the public as being willing to buy and sell securities 

generally. Id. ¶ 13; CSOF ¶. In fact, neither his website nor any other marketing materials ever 

reference selling at all, let alone the sale of any of Mr. Keener’s converted stock—Mr. Keener never 

advertised to or sought buyers for this stock. CSOF ¶ 44. 

C. Mr. Keener Did Not Profit from his Convertible Notes Investments 

 These QuickLoan investments were risky. He invested in many different convertible notes 

for this reason—many failed, and it was only by investing in a large volume that he could reasonably 

expect some to succeed. ASOF ¶¶ 2-5. He had to hold these investments for a long time. Id. They 

were also expensive, especially when considering the brokerage, compliance, and attorney fees, as 

well as the employee compensation expenses, he incurred in connection with each investment. Id. ¶ 

20; CSOF ¶ 7, 63. In some years, he lost more money than he made. ASOF ¶¶ 2-5; CSOF ¶ 18. In 

July 2016, he laid off all but a few of his assistants once he realized that these labor-intensive 

investments were not paying off. CSOF ¶¶ 6, 20, 47. 

D. The SEC’s “Facts” Are Unsupported and Disputed 

The SEC’s Statement of Facts relies on gross generalizations about many different 

investments. Some investments included conversion features, some did not. Id. ¶ 22. Some 

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included conversion rights only in the event of default, and others included conversion rights as a 

matter of course. Id. ¶ 12. Some investments were held for six months, some were held for 3 or 

more years. Id. ¶ 18; ASOF ¶ 3. Some included a market-adjustable conversion discount, some did 

not. See CSOF ¶¶ 14-15 (describing PBIO note, which had a fixed price). The SEC collapses all 

distinctions through a “summary” analysis prepared by an SEC economist that purports to opine on 

Mr. Keener’s “net income.” See Pl’s Statement of Material Facts (“PSOF”) Ex. 11 (Taveras Decl.) 

ECF No. 67-11 (only cite for Pl’s SOF ¶¶ 8, 27, 28, 29, 30, 31, 32, 33). But this “analysis” is nothing 

more than a disputed expert report in disguise—and one that was not disclosed by the July 1, 2021 

expert disclosure deadline. It is also an unreliable expert analysis and was based on two summary 

spreadsheets, neither of which properly differentiated between sources of income or identified the 

expenses that would need to be deducted from any “net income” calculation. See Taveras Decl. ¶¶ 

4-6. The only comprehensive analysis of Mr. Keener’s “net income” conducted in this case was 

prepared by Mr. Keener’s expert, a former SEC accountant named Jason Flemmons, who tested 

numbers against underlying source documents and demonstrated that the SEC’s numbers were 

overstated by tens of millions of dollars. See DSOF Ex. 70 (Flemmons Report) ECF No. 73-21 ¶¶ 

26-47. 

III. LEGAL STANDARD 

The SEC is not entitled to summary judgment “if the evidence is such that a reasonable jury 

could return a verdict for the nonmoving party.” Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 248 

(1986). The question at summary judgment is “whether there is a genuine issue for trial”—i.e., 

whether there are any factual issues that “may reasonably be resolved in favor of either party.” Id. at 

249-50. In answering this question, the Court “views the facts in the light most favorable to the 

non-moving party, draws all reasonable inferences in favor of the nonmovant and may not weigh 

evidence or make credibility determinations, which are jury functions, not those of a judge.” 

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Maxwell v. Carnival Corp., No. 19-cv-23043-BLOOM/Louis, 2021 WL 1969967, at *2 (S.D. Fla. Mar. 

18, 2021) (internal quotations omitted). 

IV. ARGUMENT 

The SEC’s summary judgment motion must be denied because it misstates the law—it 

ignores the language, context, and history of the Exchange Act, and it ignores the factors-based 

analysis of the Exchange Act dealer definition that the SEC has promoted for decades and that 

courts have routinely adopted. It also fails to apply the correct law to the factual record and all but 

concedes that Mr. Keener is not a dealer under the factors-based analysis. Finally, the SEC’s motion 

is also defeated by Mr. Keener’s fair notice and statute of limitations defenses. During the Relevant 

Period, Mr. Keener did not have notice of the interpretation of the dealer definition the SEC has 

adopted in this case. And the SEC’s request for penalties and disgorgement is also time-barred. 

A. The SEC’s Statement of the Governing Law is Wrong 

1. The SEC’s Interpretation is Not Supported by the Language, Context, and 

History of the Exchange Act 

Section 3(a)(5) of the Exchange Act defines a dealer as “any person engaged in the business 

of buying and selling securities . . . for such person’s own account.” However, it excludes a person 

who does not do so “as part of a regular business.” That is, it excludes persons not “engaged in the 

business of dealing.” 15 U.S.C. § 78c(a)(5). The key question for interpreting the statute then, is 

what does it mean to “engage in the business” of dealing? 

This phrase is not defined in the statute. It is a “longstanding interpretive principle” that 

when a statutory term “is obviously transplanted from another legal source . . . it brings the old soil 

with it.” Taggart v. Lorenzen, 139 S. Ct. 1795, 1801 (2019) (citation omitted). The business of dealing 

is just such a term. In 1934, the business of dealing meant the business of selling stocks to 

customers from the investing public and providing related dealer services; it did not mean buying 

and selling securities for investment purposes. See, e.g., Donander Co. v. C.I.R., 29 B.T.A. 312, 314-15 

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(U.S. Bd. Tax Appeals, Nov. 8, 1933) (person is not “engaged” in the business of being a dealer 

when he “bought, sold or held securities for investment or speculation,” and not for “resale to 

customers”). In fact, the term “dealer” itself was a known quantity at the time; a person “[whose] 

rights and duties have been before the courts for adjudication repeatedly,” and who was 

characterized by “quot[ing] prices” to “his customers” who wished to buy the stocks in which he 

specialized. Johnson v. Winslow, 279 N.Y.S. 147, 156 (Sup. Ct. 1935) (internal citations omitted). 

The original language of Section 15(a) of the Exchange Act underscores this meaning. This 

statute authorized the regulation of persons who engaged in “making or creating . . . a market . . . for 

both the purchase and sale of any security.” Pub. L. No. 73-291, 48 Stat. 881 at 896 (June 5, 1934) 

(https://tinyurl.com/ndkm385e). That is, it focused explicitly and exclusively on market makers—

persons who provide liquidity to the market by being willing to buy and sell securities to and from 

the investing public.1 See DSOF Ex.14 (Oldfield Report) ECF No. 72-16, at 15, Fig. 4. Indeed, the 

purpose of the Exchange Act itself was “protecting investors” and thus the broker-dealer regulations 

were intended to reach market participants interacting with investors, and not investors themselves. 

Exchange Act § 2 n.1. 

The SEC ignores anything about the context, purpose, or actual language of the Exchange 

Act, and instead demands an interpretation that is nowhere in the “plain language” of the statute. 

Although at first the SEC appears to argue that the Section 3(a)(5) dealer definition encompasses 

every person whose “livelihood” is based on “the purchase and sale of securities,” this does not last. 

Br. at 13 (internal quotations omitted). For obvious reasons: otherwise, millions of unregistered 

investors would suddenly be covered, including all day traders—a population that increased 

1

 This language was amended in 1975 but the focus on market makers did not change. The purpose 

of the amendment was to clarify a point not at issue here—specifically, to include dealers who were 

members of a national securities exchange, not only those involved in over-the-counter transactions. 

See H.R. Rep. No. 94-123, 94th Cong. 1st Sess., H.R. 4111, at 75 (1975). 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 14 of 38
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exponentially during the Covid-19 pandemic2—and it would write the trader exception out of the 

statute. 

To be specific, the SEC concedes that if most of the stock Mr. Keener sold had been 

purchased on the open market or had not been obtained directly from the issuer, it would not 

consider Mr. Keener to be a dealer. For instance, the SEC refers four times to its allegation that 

most of Mr. Keener’s stock was not purchased “in the open market.” Br. at 4, 8, 9, 18. It refers 

thirteen times to its allegation that most of the stock was “newly issued.” Br. at 1, 4, 8, 9, 10, 13, 14, 

17, 18 n. 11, 25. But this just underscores that the SEC’s argument is not based on the “plain 

language” of the statute. Section 3(a)(5) is silent as to the source of the stock. There is no support in the 

“plain language” for the artificial line the SEC seeks to draw between stock obtained on the open 

market or through any other source. 

Instead, the SEC asks the Court to apply not the “plain language,” but instead to adopt 

factors it invented for this litigation and now argues are characteristic of a dealer. Before addressing 

the SEC’s brand-new factors, we address the dealer factors that are actually set forth in dozens of 

SEC releases and publications and applied by courts, because the SEC’s brief is silent on those 

factors that actually exist.3 

2

 For instance, one article notes that “millions of unemployed Americans” have turned to day 

trading during the pandemic as a means to “replace [] lost income.” Many are Chasing the Stock Market 

By Day Trading in the Pandemic, CNBC, Sept. 21, 2020 (https://tinyurl.com/a2zu5kuh). 

3

 Part of the reason the SEC employs a moving target is because it refuses to decide which of Mr. 

Keener’s investments are actually at issue in the case. For instance, the SEC concedes that stock 

purchased “on the open market” would not be at issue, or stock that wasn’t sold “promptly” would 

not be at issue. Br. at 18. Yet the SEC repeatedly cites Mr. Keener’s sales of Blink Charging 

Company, Br. at 9, when some of Mr. Keener’s Blink shares were in fact purchased on the open 

market, and the majority of which Mr. Keener held for three or more years from the date of his 

original investment. See CSOF ¶ 36. The SEC’s refusal to take a clear position underscores the 

extent to which it is seeking summary judgment on a disputed record. 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 15 of 38
10 

2. The SEC Ignores the Dealer Factors While Also Conceding Mr. Keener 

Does Not Meet Them 

The SEC does not—and cannot—dispute that the dealer factors apply to this case. See Br. at 

21 (conceding that the Court already ruled the factors were relevant at the motion to dismiss stage); 

Order, ECF 29, at 8 (“[The] factors are relevant for assessing and ultimately concluding whether a 

party is a dealer”). The reason for this is clear—when the SEC or any other agency provides 

guidance to the public on how the law should be interpreted, the public is entitled to rely on that 

guidance in organizing their affairs. See, e.g., El Badrawi v. United States, 787 F. Supp. 2d 204, 225 (D. 

Conn. 2011) (finding published agency guide “is entitled to significant weight in this analysis, 

because it is published for the purpose of explaining the relevant regulation to the very people who 

are put at risk by the government’s proposed interpretation”); Summit Petroleum v. EPA, 690 F.3d 

733, 746, 749 (6th Cir. 2012) (rejecting agency litigation position that contradicted prior guidance 

memoranda). Indeed, courts routinely apply a factors-based analysis, relying on the factors 

described in extensive SEC guidance, to determine whether a person is a broker-dealer subject to the 

registration requirements. See, e.g., Chapel Invs., Inc. v. Cherubim Ints., Inc., 177 F. Supp. 3d 981, 990 

(N.D. Tex. 2016); SEC v. Federated All. Grp., No. 93-CV-0895E(F), 1996 WL 484036, at *4-5 

(W.D.N.Y. Aug. 21, 1996); SEC v. Kramer, 778 F. Supp. 2d 1320, 1334 (M.D. Fla. 2011).4 The very 

existence of the Guide demonstrates conclusively that the SEC concedes that the Exchange Act 

dealer definition is not transparent, and instead requires a complex facts-and-circumstances analysis. 

Yet the SEC’s 30-page motion for summary judgment on a dealer registration claim 

conspicuously and studiously avoids any mention of even one specific dealer factor. The SEC 

waited until page 19 to even mention that it has a website whose sole purpose is to offer guidance to 

4

 Some of the SEC publications listing and analyzing the dealer factors are: SEC Release No. 34-

11742, 1975 WL 163406 (Oct. 15, 1975); SEC Release No. 34-40594, 63 Fed. Reg. 59362, 59370 n. 

61 (Nov. 3, 1998); SEC Release No. 34-47364, 68 Fed. Reg. 8686, 8689, n. 26 (Feb. 24, 2003); SEC 

Release No. 34-63452, 75 Fed. Reg. 80,174 (Dec. 21, 2010). 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 16 of 38
11 

the public on the very question at issue: “Who is Required to Register.” Guide at § II. It 

nevertheless hides the actual content of that website and argues the Court should ignore it instead. 

Br. at 20. The SEC’s silence speaks volumes. 

It is obvious the SEC remained silent because even a cursory look at the factors will 

demolish the SEC’s position in this case. Let us look at how the SEC’s case fares under the factors 

that have been posted on the SEC’s website from 2008 to this day: 

SEC Website Factor Does Mr. Keener Meet It? 

1 “a firm that advertises publicly that it makes a 

market in securities” 

NO. The SEC admits Mr. Keener never 

made a market in any securities. (ASOF ¶ 

11; DSOF Ex. 7 ECF No. 72-9, ¶ 15.) 

2 “a person who holds himself our as being 

willing to buy and sell a particular security on 

a continuous basis” 

NO. There is no evidence that Mr. Keener 

ever held himself out as willing to sell any 

particular security, or to buy or sell any 

particular security on a continuous basis. 

(ASOF ¶ 13; see, e.g., PSOF Ex. 9 ECF No. 

67-9, screenshots of Mr. Keener’s website.) 

3 “a person who runs a matched book of 

repurchase agreements” 

NO. The SEC admits Mr. Keener never 

ran a book of repurchase agreements. 

(ASOF ¶ 15; DSOF Ex. 7 ECF No. 72-9, ¶ 

29.) 

4 “a person who issues or originates securities 

that he also buys and sells” 

NO. The person who issues or originates 

securities is the issuer company itself. Mr. 

Keener is not an issuer. (ASOF ¶ 14; 

DSOF Ex. 57 ECF No. 73-8, at -8413.) 

5 “Do you advertise or otherwise let others 

know that you are in the business of buying 

and selling securities?” 

NO. The SEC has not cited any evidence 

that Mr. Keener ever advertised that he sold 

securities. 

6 “Do you do business with the public (either 

retail or institutional)?” 

NO. The SEC has not cited any evidence 

that Mr. Keener did business with either the 

retail or institutional public. (ASOF ¶¶ 13, 

25; DSOF Ex. 56 ECF No. 73-7, Resp. to 

Nos. 14-15.) 

7 “Do you make a market in, or quote prices for 

both purchases and sales of, one or more 

securities?” 

NO. The SEC admits that Mr. Keener 

never made a market or quoted a market in 

any securities. (ASOF ¶ 11; DSOF Ex. 7 

ECF No. 72-9 ¶¶ 15, 17.) 

8 “Do you participate in a ‘selling group’ or 

otherwise underwrite securities?” 

NO. The SEC admits that Mr. Keener 

never participated in a selling group. 

(ASOF ¶ 11; DSOF Ex. 7 ECF No. 72-9, ¶ 

18.) And he complied with Rule 144, which 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 17 of 38
12 

SEC Website Factor Does Mr. Keener Meet It? 

confirms he did not act as an underwriter. 

See Sec. IV.B.4, infra. 

9 “Do you provide services to investors, such as 

handling money and securities, extending 

credit, or giving investment advice?” 

NO. The SEC admits that Mr. Keener 

never provided services to investors. 

(ASOF ¶ 12; DSOF Ex. 7 ECF No. 72-9, ¶¶ 

20, 21.)5

10 “Do you write derivatives contracts that are 

securities?” 

NO. The SEC admits that Mr. Keener 

never wrote derivatives contracts that are 

securities. (ASOF ¶ 15; DSOF Ex. 7 ECF 

No. 72-9 ¶ 23.) 

There are yet more factors raised in other SEC statements. Let us take a look at how Mr. 

Keener would fare under these factors: 

Additional SEC Factor Source Does Mr. Keener Meet it? 

11 “Carrying a dealer inventory” SEC No-Action 

Letter, Fairfield 

Trading Corp., 

1988 WL 233618, 

(Dec. 10, 1987) 

NO. A dealer inventory is a stable of 

stock positions that fluctuates in 

response to the demands of customers. 

(DSOF Ex. 14 ECF No. 72-16 ¶ 40.) 

Mr. Keener made all his own 

investment decisions and did not have 

any customers. (DSOF Ex. 2 ECF 

No. 72-3, at 33:3-21, 225:16-19.) 

12 “Lending securities in 

connection with securities 

transactions” 

Proposed Rule, 

SEC Release No. 

34-46745, 2002 

WL 31428622 

(Oct. 30, 2002) 

NO. The SEC admits Mr. Keener 

never lent securities. (ASOF ¶ DSOF 

Ex. 7 ECF No. 72-9, ¶ 31.) 

The factors analysis is based on the totality of all the relevant facts and circumstances. See, 

e.g., SEC v. Feng, 935 F.3d 721, 731-32 (9th Cir. 2019). Mr. Keener answers “no” to every factor. 

The SEC does not and cannot deny this. On this record, he by definition cannot qualify as a dealer 

under a totality of the circumstances. At minimum, he is entitled to a jury trial on whether he meets 

5

 The SEC now claims Mr. Keener provided “debt consolidation” “services to issuers.” Br. at 16 

n.10. That is both false and irrelevant. There is no evidence that Mr. Keener ever provided “debt 

consolidation” services to issuers and in fact he never did so. Moreover, no guidance suggests debt 

consolidation services “to issuers”—as opposed to services to investors—is relevant to the dealer 

analysis. 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 18 of 38
13 

the factors. See, e.g., Mosley v. Progressive Am. Ins. Co., No. 14-cv-62850-BLOOM/Valle, 2018 WL 

6171417, at *5 (S.D. Fla. Nov. 25, 2018) (denying summary judgment when “totality of the 

circumstances” analysis showed existence of “[t]riable issues of material facts”). 

B. The SEC Cites Only Disputed, Unsupported, or Immaterial Facts 

Because the SEC must concede Mr. Keener does not meet the dealer factors that have 

existed for years, it has fabricated brand-new factors to bolster a novel litigation position—renting 

office space, using social media, making investments directly with an issuer, and negotiating a 

conversion discount. These new factors are not mentioned at all in any SEC releases, publications, 

or other guidance over the past 80 years. Indeed, some of the new factors contradict the factors set 

forth in prior SEC publications. The Court should reject the SEC’s invitation to apply brand new 

factors and impose retroactive liability on Mr. Keener based on them. 

1. That Mr. Keener Incurred Investment Expenses is Irrelevant 

During the Relevant Period,6 Mr. Keener had assistants and contractors to help him identify 

investment opportunities and manage his investments. CSOF ¶¶ 6, 20, 47. He rented office space 

so that he and his assistants would have a place to work. Id. ¶ 5. He developed software to help 

him ensure that he conducted adequate due diligence before making an investment, and that he 

accurately accounted for expenses and proceeds in order to prepare his taxes. Id. ¶¶ 23-24. 

The SEC claims these activities turned him into a dealer. See Br. at 15 (arguing Mr. Keener 

was a dealer because he “maintained a large office,” had “employees and contractors,” and created a 

“computer system” to “find,” “manage,” and “account” for investments). There is no basis in law 

for this claim. The Exchange Act does not say that having employees, researching investment 

opportunities, or keeping good accounting records qualifies as dealer activity. Neither the SEC’s 

6

 The SEC defines the Relevant Period as “January 2015 to January 2018.” PSOF ECF No. 67 at 3 

n.1. 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 19 of 38
14 

Guide to Broker Dealer Registration nor any other prior SEC Release, no-action letter, or other 

guidance identifies a single one of these facts as relevant to the dealer analysis. And the SEC does 

not cite any case law holding that these facts are relevant. At most, the SEC’s argument is based on 

what its enforcement attorneys perceive to look like a “business.” But this interpretation makes no 

sense when there are whole categories of market participants—angel investors, hedge funds, family 

offices, and high-frequency traders—who meet these same criteria, but are not registered as dealers. 

DSOF Ex. 14 ECF No. 72-16, ¶¶ 48-69. The SEC cannot impose retroactive liability based on facts 

that no prior law holds as relevant. At minimum, Mr. Keener is entitled to a jury trial on whether 

these facts qualify as dealer activity. 

2. Mr. Keener’s Limited Social Media Presence and Conference Attendance is 

Irrelevant 

During the Relevant Period, Mr. Keener had a website, occasionally used social media, and 

attended a few conferences. CSOF ¶¶ 42, 46. These efforts were aimed at establishing Mr. Keener’s 

credibility with companies as an investor, and none were directed at other investors because Mr. 

Keener did not solicit buyers. Id. ¶¶ 37, 64. The SEC claims these activities turned him into a 

dealer. See Br. at 15-16 (arguing Mr. Keener was a dealer because he “operated a website and a 

Twitter account” and “sponsored” or “attended[] conferences”). Again, the SEC cites no basis in 

law for alleging these facts are relevant. To the contrary, under the law, these facts affirmatively 

show Mr. Keener was not a dealer. 

Prior SEC guidance and case law is unanimous: the only “advertising” efforts that could be 

relevant to the dealer analysis is advertising to the investing public that you are providing dealer 

services, such as market making services (i.e., you stand ready to “buy and sell” securities in the hands 

of the public), or investment advisory services. Specifically, the SEC has repeatedly advised that 

only the following types of advertising are relevant to the dealer analysis: 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 20 of 38
15 

 “A firm that advertises publicly that it makes a market in securities.” Guide at Sec. 

II.B. 

 Persons that “advertise or otherwise let others know that [they] are in the business of 

buying and selling securities.” Id. (emphasis added) 

 “[A]dvertising or listing as a dealer in professional publications such as Standard & 

Poor’s Blue List of Current Municipal Offerings, the Bond Buyer’s Directory of Municipal 

Bond Dealers of the United States, or Polk’s World Bank Directory, or advertising in 

publications of general circulation as a dealer in municipal securities.” SEC Release 

No. 34-11742 (emphasis added). 

 “[O]therwise holding itself out to other dealers or to investors as a dealer in municipal 

securities.” Id. (emphasis added). 

Put simply, there is no law or guidance that even suggests that advertising directed at companies for 

the purpose of identifying investment opportunities could qualify. 

This is particularly so given the trivial nature of the “advertising” efforts the SEC has made 

central to its case. His Twitter presence was limited to 22 tweets from a three-year period (2016 to 

2018). PSOF Ex. 26 ECF No. 67-26. He had 75 followers. Id. There is no evidence that a single 

company contacted Mr. Keener after viewing his website or Twitter feed. The SEC cites a single, 

three-page e-mail “newsletter” that was not even opened by most recipients and had a whopping 

total of two individuals who engaged with it by clicking on a link. PSOF Exs. 32, 33 ECF No. 67-

32, 67-33. 

Nor does the SEC provide any explanation of why marketing efforts aimed at issuers, and 

that do nothing to solicit the investing public, could matter to dealer status. At minimum, Mr. 

Keener is entitled to a jury trial on whether these efforts qualified as “advertising” that Mr. Keener is 

“in the business of buying and selling securities,” given that at this stage, all reasonable inferences 

must be drawn in his favor. See, e.g., Skop v. City of Atlanta, 485 F.3d 1130, 1139-40 (11th Cir. 2007) 

(reversing grant of summary judgment when district court failed to draw critical inferences in nonmovant’s favor). 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 21 of 38
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3. The Volume of Mr. Keener’s Trading Activity is Irrelevant 

Mr. Keener’s investments at issue in this case were in low-priced securities in the microcap 

space. Some of the securities traded for pennies or less. Consequently, even a small investment 

would result in a large number of shares. 

The SEC’s mantra is that Mr. Keener sold “billion[s]” of shares, arguing that this is 

conclusive proof of Mr. Keener’s dealer status. See Br. at 1, 8, 10, 17. Not so. Anyone who buys 

and sells microcap stocks even with small investments by definition will engage with hundreds of 

millions, if not billions of shares. There is no law or guidance that singles out the microcap industry 

as being of any particular relevance to the dealer analysis. 

Moreover, the SEC has issued substantial prior guidance advising that volume is actually 

irrelevant to the dealer analysis. Specifically: 

 Under “traditional concepts of what constitute dealer activities,” a “bank which buys 

and sells municipal securities solely for investment for its own account . . . will not 

generally be classified as a dealer, even though such purchases and sales are made with some 

frequency.” SEC Release No. 34-11742 (emphasis added). 

 “It would appear that the nature of a bank’s activities, rather than the volume of 

transactions or similar criteria, are of greater relevance in determining [whether] a bank 

is a municipal securities dealer.” Id. (emphasis added). 

Former SEC Chairwoman Mary Jo White also conceded that high frequency traders—who by 

definition trade substantial volumes, and account for a majority of all trading volume on any given 

day—do not fit within the dealer definition. Mary Jo White, “Enhancing Our Equity Market 

Structure,” (June 5, 2014) (https://tinyurl.com/4war8xjr); see also Guy P. Lander, U.S. Securities Law 

for International Financial Transactions and Capital Markets (Nov. 2020) § 13.23 (securities law treatise 

explaining that “the SEC has generally excluded investors from the definition of dealer, including 

those investors whose securities activity is sufficiently large and frequent to make them ‘active 

traders’”). If volume was the key factor the SEC now claims, or even a relevant factor at all, 

Chairwoman’s White’s conclusion that high frequency traders are not dealers would be 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 22 of 38
17 

incomprehensible. Instead, Chairwoman White got it right, and the SEC’s current litigation 

interpretation has no place. In particular, when the SEC has admitted that no dollar or volume 

thresholds exist for identifying dealers, DSOF Ex. 7 (10.29.20 SEC Resp. to Def. Req. for Admis. 

(1st Set)) ECF No. 72-13 ¶ 44, Mr. Keener is at minimum entitled to a jury trial on whether his 

volume of activity turned him into a dealer. 

4. That the Stock was New to the Market Did Not Make Mr. Keener an 

Underwriter or Dealer 

The SEC’s argument that Mr. Keener is a dealer because some of the stock he sold was new 

to the market is also in no way based on the “plain language” of the Exchange Act. At most, the 

SEC argues that Mr. Keener engaged in some kind of “distribution” of the new stock, and this 

turned him into an underwriter, which could be one type of dealer. Br. at 9 (Mr. Keener 

“distributed [stock] to the public...”). This is not correct. There is an entire body of securities law 

that concerns when a sale turns into a distribution, including a rule adopted by the SEC—Rule 144 

under the Securities Act—that provides investors with a bright line safe harbor against being 

deemed an underwriter engaging in a distribution of securities. (Incidentally, the SEC seeks to keep 

Rule 144 out of this case and cause confusion by accusing him of engaging in a “distribution” but 

eliminating his ability to respond, Pl’s Mot. in Lim. ECF No. 64, at Sec. III.F.) Specifically, the 

Commission “adopted Rule 144 to establish specific criteria for determining whether a person is not 

engaged in a distribution.” 17 C.F.R. § 230.144 (Preliminary Note). The Rule itself is titled 

“Persons deemed not to be engaged in a distribution.” Thus, “[i]f a sale of securities complies with” 

the conditions set forth in the Rule, the person who sells the securities “will be deemed not to be 

engaged in a distribution.” Id. (emphasis added). 

Mr. Keener complied with Rule 144 in connection with every sale. ASOF ¶¶ 22-23. He 

obtained letters from attorneys, letters that were reviewed by his brokerage firms and by the issuers’ 

transfer agents, that confirmed he complied with Rule 144. Id. That is, attorneys confirmed with 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 23 of 38
18 

every sale that Mr. Keener was not engaging in a “distribution” and that instead he had held the 

stock for long enough to prove he had obtained the stock for investment purposes. Id. The SEC 

does not dispute that Mr. Keener complied with Rule 144, and does not dispute the accuracy of 

these attorney opinion letters. Id. ¶ 24. The SEC is not entitled to summary judgment by claiming 

Mr. Keener engaged in a distribution when the record evidence shows he did no such thing. 

The SEC’s claim that Mr. Keener sold the new stock “promptly” is also false. Br. at 18. The 

dictionary definition of “promptly” is “immediately.” Oxford English Dictionary 

(https://tinyurl.com/3w9hvw3c). He never sold stock from convertible notes less than 6 months 

after his investment. ASOF ¶¶ 3, 22, 24. Mr. Keener held his investments for at least six months 

because that is the required holding period specified in Rule 144 to demonstrate the stock is being 

held for investment purposes. See 17 C.F.R. § 230.144(d)(1)(i). Nonetheless, to the extent the SEC 

argues the length of time between his investment and sale is relevant to the dealer analysis, this is yet 

another fact that cannot be resolved against Mr. Keener on summary judgment and is instead for the 

jury to determine. 

5. The Conversion Discount is Irrelevant 

The SEC’s final argument suffers the same fate. Some of the convertible note investments 

that Mr. Keener negotiated with issuers allowed Mr. Keener to convert unpaid loan balances to 

stock at a discount to the trading price. CSOF ¶¶ 9, 14-15. Such a conversion discount is a 

common feature in many convertible notes, especially when there is a long holding period before the 

investor can seek to convert the note and sell any stock. See, e.g., DSOF Ex. 14 ECF No. 72-16 ¶¶ 

52-53. That is because the investor takes substantial risk during the holding period. As the SEC 

itself previously acknowledged, discounts of “20-50%” are common in the types of investments that 

Mr. Keener made. Revision of Holding Period Requirements in Rules 144 and 145, SEC Release 

No. 33-7390, 1997 WL 70606 (Feb. 28, 1997). 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 24 of 38
19 

Of course, the “plain language” of the Exchange Act contains no reference to discounts or 

convertible notes at all. Nor are there any SEC Releases, publications, or other guidance that 

indicate that investing in a convertible note with a conversion discount might qualify as dealer 

activity. The SEC concedes all of this. Instead, the SEC’s sole basis for asserting that it was clear 

that the conversion discount rendered Mr. Keener a dealer is the following one sentence from SEC 

v. Big Apple Consulting that concerned the definition of a dealer under the Securities Act of 1933, and 

not the Exchange Act of 1934, and did not have any citations to any supporting authority: “As 

further evidence of their dealer status, [defendants] purchased CyberKey stocks at deep discounts 

pursuant to its contractual agreement with CyberKey and then sold those stocks for profit.” 783 

F.3d. 786, 810 (11th Cir. 2015).7 The SEC does not—and cannot—cite any other source of 

authority from the eight decades of prior SEC interpretations and judicial decisions to support its 

position that the Exchange Act compels the court to find conversion discounts qualify as dealer 

activity. Consequently, the SEC’s argument must fail. 

At most, the SEC’s argument appears to be based on custom and practice—i.e., dealers 

typically make money “not from buying stock in the open market and reselling when prices 

increased” but by purchasing “discounted stock” directly from companies. Br. at 18. That is a 

question of fact for a jury—and a disputed one, because, as Mr. Keener’s expert Dr. George 

Oldfield explains, dealers typically profit from a bid-ask spread, not a conversion discount. DSOF 

Ex. 14 ECF No. 72-16 ¶ 39. There is no evidence in the record, let alone enough evidence to allow 

the SEC to win on summary judgment, that this is a typical dealer practice. 

7

 The facts of Big Apple are also distinguishable because the defendant did not acquire the stock for 

investment purposes, and did not comply with the Rule 144 holding period; instead, the defendant 

obtained stock from the issuer in exchange for promoting false information about the issuer’s stock, 

and immediately sold it. 783 F.3d at 790-91 

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C. Big Apple and Almagarby Do Not Support the SEC’s Position 

At bottom, the SEC’s argument hinges solely on its interpretation of Big Apple and SEC v. 

Almagarby, 479 F. Supp. 3d 1266 (S.D. Fla. 2020) (Judge Cooke). But similar to its Section 3(a)(5) 

analysis, the SEC’s interpretation of Big Apple and Almagarby is also a moving target that vanishes on 

closer inspection. At first, the SEC asks the Court to interpret these cases to sweep into the dealer 

definition everyone who makes a living from buying and selling securities. Br. at 13, 16. But as with 

its Section 3(a)(5) analysis, it quickly backs away from this theory, recognizing its radical 

overbreadth. If the SEC had actually embraced this interpretation, it would have taken down the 

Guide to Broker-Dealer Registration, because the dealer analysis would not require a single factor. 

It did not do so. Instead, the Guide continues to remain on the SEC’s website to this day, and 

continues to advise the public that: “Individuals who buy and sell securities for themselves generally 

are considered traders and not dealers.” Guide Sec. II.B. 

Moving away from this overbroad interpretation, as it must, the SEC then argues that the 

key to Big Apple’s dealer holding is that the defendant obtained “stock directly from the issuer, which 

it then sold in the public market.” Br. at 16 (citing Big Apple). But Big Apple is silent as to this fact—

the Eleventh Circuit never once opines on whether it is relevant that the stock was acquired 

“directly from the issuer.” Indeed, the defendant in Almagarby did not obtain convertible notes 

directly from the issuer, and instead purchased notes from third party debtholders. 479 F. Supp. 3d 

at 1268. 

Finally, the SEC asks this Court to ignore that Big Apple concerned the dealer definition 

under the Securities Act, and instead collapse the Securities Act and Exchange Act dealer definitions 

because Big Apple in footnote 11 noted the two definitions “are very similar.” See Br. at 13 n.7. As 

an initial matter, the two statutes are different. The SEC’s Guide to Broker-Dealer Registration only 

concerns the Exchange Act dealer definition and does not refer to the Securities Act at all. The 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 26 of 38
21 

same is true for all of the SEC Releases and no-action letters concerning the Exchange Act dealer 

definition: not one of them opines that the same analysis would apply to the Securities Act. An 

inspection of the plain language of the statutes makes clear why: 

Securities Act dealer definition: “The term ‘dealer’ means any person who engages either 

for all or part of his time, directly or indirectly, as agent, broker, or principal, in the business of 

offering, buying, selling, or otherwise dealing or trading in securities issued by another 

person.” 15 U.S.C. § 77b(a)(12) (emphasis added). 

Exchange Act dealer definition: “In general--The term ‘dealer’ means any person engaged 

in the business of buying and selling securities . . . for such person’s own account . . . [but 

there is an] Exception for person not engaged in the business of dealing—The term ‘dealer’ 

does not include a person that buys or sells securities . . . for such person’s own account . . . 

but not as part of a regular business.” 15 U.S.C. § 78c(a)(5) 

Significantly, the Securities Act definition is broader—there is no exception for persons “not 

engaged in the business of dealing.” And only the Exchange Act definition triggers a registration 

requirement. More importantly, to the extent the two definitions should be interpreted the same 

way, Mr. Keener obtained dozens of attorney opinion letters that confirmed he was not acting as a dealer 

under the Securities Act. ASOF ¶ 23. By contrast, there is no evidence that either the defendants in Big 

Apple or Almagarby had obtained such confirmation. 

It is worth repeating that the SEC asks this Court to apply Big Apple to the Exchange Act 

based on a footnote concerning a claim that was not briefed and was instead abandoned on appeal. 

783 F.3d at 806 (“[A]ny claims raised by [defendants] as to their § 15(a) violations of the Exchange 

Act failing to register with the SEC are deemed abandoned.”) Consequently, the passing reference 

in Big Apple to the Exchange Act is by definition dicta. See, e.g., Seminole Tribe of Florida v. Florida, 517 

U.S. 44, 125 (1996) (Souter, J. dissent) (defining “dicta in the classic sense” as “sheer speculation” 

about what would happen on issues “not before the court”). As the Supreme Court articulated: “Is 

the Court having once written dicta calling a tomato a vegetable bound to deny that it is a fruit 

forever after?” Kirtsaeng v. John Wiley & Sons, Inc., 568 U.S. 519, 548 (2013). Of course, it is not so 

bound. 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 27 of 38
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The SEC’s other cases are primarily district court cases decided in the last year that allow the 

SEC to rely on its interpretation of Big Apple for the motion to dismiss stage. See, e.g., SEC v. River 

North, 415 F. Supp. 3d 853 (N.D. Ill. 2019); SEC v. Fiero, No. 20-2104 (MAS) (DEA), 2020 WL 

7481773 (D.N.J. Dec. 18, 2020). Almagarby is the only case cited by the SEC that was decided at 

summary judgment. In Almagarby, the court refused to consider or even name a single dealer factor 

on the sole basis that “There is nothing in any of the [SEC] releases . . . that impl[y] that the listed 

factors are an exclusive or exhaustive checklist that creates a burden of proof for the SEC.” 479 F. 

Supp. 3d. at 1273. 

We respectfully submit that this was an incorrect statement of law, and one this Court 

already rejected at the motion to dismiss stage. Order, ECF No. 29, at 8 (holding that the “factors 

are relevant for assessing and ultimately concluding whether a party is a dealer”). Indeed, the SEC 

specifically advised the public in routine written correspondence concerning dealer registration 

inquires that that the Guide contains the “activities/factors [that] courts consider when 

determining whether a person fits [the dealer] definition.” DSOF Ex. 73 ECF No. 73-24, at 1. 

The SEC never told the public to ignore the factors and look at Big Apple instead. If the SEC can 

tell the public to look at the factors, but then successfully persuade this Court to ignore every single 

one, it puts the public in the impossible position of not being able to rely on or trust anything the 

SEC says. It would also give the SEC a free pass to create total confusion and uncertainty in the 

market. This Court should not encourage or permit such behavior from a regulator. 

D. Mr. Keener’s Affirmative Defenses Present Disputed Facts for the Jury 

1. The SEC Is Not Entitled to Summary Judgment on Fair Notice 

The SEC’s motion for summary judgment is premised on the assertion that the plain 

language of the Exchange Act definition of a “dealer,” as interpreted in a dicta footnote in Big Apple, 

unambiguously applies to Mr. Keener. As detailed above, this assertion is incorrect—the statutory 

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language is not transparent, which is why the SEC has issued so many interpretations of it over the 

years. Instead, the determination of whether Mr. Keener is a dealer requires analyzing Mr. Keener’s 

conduct with reference to the various interpretations the SEC has issued, including the dozen 

factors in the Guide. As set forth above, the record shows that Mr. Keener did not engage in any of 

the factors set out in the Guide. See Sec. IV.A.2, supra. Therefore, at a minimum, the question of 

liability must be weighed by the jury, which can assess the totality of the circumstances to determine 

whether Mr. Keener is a dealer, and the SEC’s motion must be denied. 

But even if the Court does not agree and finds that the statutory language so clearly 

encompasses Mr. Keener’s conduct that the jury can be sidelined, the SEC is still not entitled to 

summary judgment for an independent reason—Mr. Keener lacked fair notice that his conduct was 

unlawful. To be clear, Mr. Keener’s argument on this point is not, as the SEC suggests, that the 

statutory language is vague8 or that the SEC failed to provide guidance to the market. Br. at 22-23. 

Instead, the SEC did provide guidance to the market—lots of it, over many years. See Sec. IV.A.2, 

supra (summarizing the dozens of Releases, no-action letters, and the SEC’s Guide to Broker-Dealer 

Registration). The problem is that the SEC’s position in this litigation directly contradicts its prior 

guidance. 

8

 The SEC argues that a “‘fair notice’ claim necessarily challenges the language of a statute on the 

basis of vagueness.” Br. at 22. This is illogical and plainly incorrect. A vague statute is one way, but 

certainly not the only way, in which a person can be deprived of fair notice of what the law requires. 

For instance, the Supreme Court did not consider vagueness when it rejected an agency’s new 

interpretation of its regulations as applied to conduct that took place before the new interpretation 

was announced, based on “the principle that agencies should provide regulated parties fair warning 

of the conduct a regulation prohibits or requires.” Christopher v. SmithKline Beecham Corp., 567 U.S. 

142, 156 (2012) (internal citations and quotations omitted); see also Upton v. SEC, 75 F.3d 92, 98 (2d 

Cir. 1996) (holding, without any consideration of vagueness, that “we cannot defer to the [SEC’s] 

interpretation of its rules if doing so would penalize an individual who has not received fair notice of 

a regulatory violation”). 

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The Supreme Court has made clear that a “fundamental principle in our legal system is that 

laws which regulate persons or entities must give fair notice of conduct that is forbidden or 

required. This requirement of clarity in regulation is essential to the protections provided by the 

Due Process Clause of the Fifth Amendment.” FCC v. Fox TV Stations, Inc., 567 U.S. 239, 253 

(2012) (citations omitted). Thus, “[r]egulated parties should know what is required of them so they 

may act accordingly.” Id. “It is one thing to expect regulated parties to conform their conduct to an 

agency’s interpretations once the agency announces them; it is quite another to require regulated 

parties to divine the agency’s interpretations in advance or else be held liable when the agency 

announces its interpretations for the first time in an enforcement proceeding and demands 

deference.” SmithKline Beecham Corp., 567 U.S. at 158-59. 

These fundamental principles mean that the SEC cannot penalize someone based on “a 

substantial change in its enforcement policy that was not reasonably communicated to the public.” 

Upton, 75 F.3d at 98. Yet that is exactly what the SEC seeks to do to Mr. Keener. There is no 

dispute that, for decades, the SEC advised market participants that whether someone is a “dealer” is 

a fact-intensive inquiry requiring consideration of up to a dozen factors—none of which describe 

Mr. Keener’s conduct. See Sec. IV.A.2, supra. The SEC now says that those factors are irrelevant—

suddenly replaced with new factors never before announced, such as the fact that Mr. Keener 

employed assistants to manage his affairs, that he used social media to promote himself, or that he 

negotiated for conversion discounts. None of these factors have ever appeared in any of the SEC’s 

dealer-related guidance over the years. 

Mr. Keener reasonably relied on the guidance that the SEC had previously issued to 

determine that he was not a dealer. Indeed, the SEC never seriously contests that if the factors set 

forth in the prior guidance were applied, Mr. Keener would be in the clear. See Sec. IV.A.2, supra. 

By changing its position without warning, the SEC has deprived Mr. Keener of fair notice of what 

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the law requires. Not to mention that to this day it is still not clear what facts the SEC believes 

pushed Mr. Keener across the line—e.g., would having four assistants be enough? Would several 

sales a day be enough? The Constitution demands clear lines, not “arbitrary and erratic” 

enforcement. Papachristou v. City of Jacksonville, 405 U.S. 156, 162 (1972). 

The SEC’s only response is that Mr. Keener should have known that the factors had 

changed based on Big Apple. This is both incorrect and extremely cynical. As explained above, Big 

Apple did not even interpret the relevant statute. It applied the definition of “dealer” in the 

Securities Act, which is different than the definition of “dealer” in the Exchange Act, and specifically 

noted that the appellants had “abandoned” the Exchange Act issue. Big Apple Consulting USA, Inc., 

783 F.3d at 806. Moreover, the entire analysis of the term “dealer” in Big Apple was three paragraphs 

in a lengthy opinion, and those three paragraphs did not even address the SEC’s historical guidance.9 

So the SEC’s claim here is that those three paragraphs in a lengthy legal opinion, which 

interpreted a different statute, silently displaced decades of prior government guidance. This 

position is manifestly unfair and should be rejected out of hand by granting Mr. Keener’s motion for 

summary judgment on lack of fair notice. Upton, 75 F.3d at 98 (rejecting SEC argument that a prior 

consent order was sufficient to put individuals on notice of change in enforcement policy); KPMG, 

LLP v. SEC, 289 F.3d 109, 116 (2002) (holding defendant denied fair notice when sanctioned based 

on a “novel” and “strained” reading of accounting industry rule). 

At a minimum, however, the question whether Mr. Keener had fair notice of the new way in 

which the Exchange Act definition of “dealer” would be applied is a factual question that must be 

decided by the jury. See, e.g., United States v. Harra, 985 F.3d 196, 215-16 (3d Cir. 2021) (finding that 

9

 The other case on which the SEC relies, SEC v. Almagarby, cannot have provided Mr. Keener any 

notice because it was decided after this case was filed. 479 F. Supp. 3d 1266. Big Apple also was not 

decided until April 2015, several months after the start of the Relevant Period. 

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whether an individual had fair warning of government interpretation of regulation was a question for 

the jury); Rothenberg v. Daus, 481 F. App’x. 667, 670-71 (2nd Cir. 2012) (district court erred in 

granting summary judgment where a dispute exists as to fair warning). In particular, one way in 

which Mr. Keener can demonstrate that he lacked fair notice that he could be a securities dealer 

subject to registration requirements is by pointing to the fact that his activities were consistent with a 

whole industry of unregistered investors who make a living from buying and selling securities. See, 

e.g., SmithKline Beecham Corp., 567 U.S. at 157 (citing the pharmaceutical industry’s “longstanding 

practice” that contradicted agency’s current interpretation of the law as evidence of lack of notice); 

Diebold Inc. v. Marshall, 585 F.2d 1327, 1336 (6th Cir. 1978) (finding no fair notice when purported 

requirement was rarely fulfilled or enforced in the industry); SEC v. Kovzan, No. 11–2017–JWL, 2012 

WL 4819011, at *5 (D. Kan. Oct. 10, 2012) (industry practice is relevant to a fair notice defense). 

Since the industry custom and practice around the dealer definition is a factual issue that the jury 

must address, the SEC is not entitled to summary judgment on Mr. Keener’s fair notice defense. 

2. The SEC is Not Entitled to Summary Judgment on Statute of Limitations 

The SEC’s motion for summary judgment also must be denied to the extent it seeks 

penalties or disgorgement because those claims are time-barred. In its motion, the SEC notes that 

the statute of limitations for SEC disgorgement claims was amended by Section 6501(a) of the 

National Defense Authorization Act for Fiscal Year 2021 (“NDAA”) and that the amendment 

applies to cases pending on the date the NDAA was enacted, which was January 1, 2021. Br. at 27-

28 (citing NDAA, Pub. L. No. 116-283 (2021), §§ 6501). Thus, the SEC contends that the amended 

statute of limitations for disgorgement applies here. Not so. 

It is well-established that a change to a limitations period does not revive claims that had 

already expired pursuant to the previously-applicable statute of limitations. Berman v. Blount Parrish 

& Co., 525 F.3d 1057, 1058-59 (11th Cir. 2008) (“Appellants urge that because they filed their 

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complaint within five years of the May 1998 bond purchase, the Sarbanes-Oxley Act’s statute of 

limitations revived their previously expired securities claims. This argument has been soundly rejected 

by every circuit court to have considered it. We now join our sister circuits and hold that

the amended limitations period of Sarbanes-Oxley does not revive securities claims on which the 

previous statute of limitations had run.”) (citations omitted) (emphasis in original). Therefore, the 

question is whether the SEC’s claims had already expired before the SEC filed its Complaint on 

March 24, 2020. 

At the time the Complaint was filed, before the enactment of the NDAA, the applicable 

statute of limitations for both penalties and disgorgement was set forth in 28 U.S.C. § 2462, which 

provides as follows: 

Except as otherwise provided by Act of Congress, an action, suit or 

proceeding for the enforcement of any civil fine, penalty, or 

forfeiture, pecuniary or otherwise, shall not be entertained unless 

commenced within five years from the date when the claim first 

accrued if, within the same period, the offender or the property is 

found within the United States in order that proper service may be 

made thereon. 

28 U.S.C. § 2462 (emphasis added).10

The limitations period in the statute is “five years from the date when the claim first 

accrued.” Id. By definition, a claim can only “first accrue” once, and the Supreme Court has held 

that occurs for purposes of § 2462 when the claim “comes into existence.” Gabelli v. SEC, 568 U.S. 

442, 448 (2013). “Thus the standard rule is that a claim accrues when the plaintiff has a complete and 

present cause of action . . . . This reading sets a fixed date when exposure to the specified Government 

enforcement efforts ends, advancing the basic policies of all limitations provisions: repose, 

10 The statute applies to penalties by its plain terms. In 2017, the Supreme Court held that it also 

governs claims for disgorgement. Kokesh v. SEC, 137 S. Ct. 1635, 1644 (2017). 

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elimination of stale claims, and certainty about a plaintiff’s opportunity for recovery and a 

defendant’s potential liabilities.” Id. (emphasis added; citations and quotation marks omitted). 

Here, the SEC’s Complaint alleges that “[b]y engaging in a regular business of buying 

convertible notes and selling the resulting newly issued shares of microcap stock into the public 

market, Keener operated as an unregistered securities dealer.” ECF No. 1, ¶ 2. So at what point did 

the SEC have a “complete and present cause of action” against Mr. Keener for operating as an 

unregistered securities dealer? The Complaint itself answers that question by referring to several 

transactions entered into by Mr. Keener throughout 2014 and early 2015—all more than five years 

before the Complaint was filed on March 24, 2020. Id. ¶ 15. The SEC’s own Statement of Facts 

shows that there were many other such transactions. See, e.g., CSOF ¶ 8 (citing transactions dating 

back to July 2010). 

The SEC’s claim that Mr. Keener operated as an unlicensed dealer first came into existence 

when he engaged in those transactions. There is no allegation that Mr. Keener did anything 

different after March 2015—he just engaged in more of the same types of transactions. Thus, if he 

is an unregistered securities dealer today, then he was also an unregistered securities dealer on March 

23, 2015, more than five years before the Complaint was filed. And that means that the SEC’s 

requests for penalties and disgorgement was time-barred when the Complaint was filed, and remains 

so even after enactment of the NDAA. 

The SEC counters that its claim is still timely because the parties entered into a “tolling 

agreement” purporting to suspend the statute of limitations for one year. Thus, it contends that the 

limitations period is actually six years, meaning that its claim is timely if it first accrued after March 

24, 2014 (rather than after March 24, 2015). Br. at 28. The SEC is wrong. Section 2462 is a 

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“jurisdictional” statute of limitations, which means that it cannot be altered by a tolling agreement or 

anything else. SEC v. Graham, 21 F. Supp. 3d 1300, 1306-08 (S.D. Fla. 2014).11

In Graham, the SEC argued that its claim was timely despite being brought more than five 

years after the claim accrued due to the fraud “discovery rule.” The court held that it lacked 

jurisdiction to even consider whether the discovery rule applied, explaining that “just as it is true that 

federal courts possess only the statutory power to adjudicate a given case established by Congress, 

Congress may also act to limit the scope of that power, or remove it altogether.” Id. at 1306 (citing 

John R. Sand & Gravel Co. v. U.S., 552 U.S. 130 (2008)). The court reasoned that the plain language 

of Section 2462 did exactly that by dictating that claims “shall not be entertained unless 

commenced within five years from the date when the claim first accrued.” Id. at 1308 (emphasis 

added). He explained that “[t]his statutory language is a congressional removal of a court’s power to 

entertain—its adjudicatory authority and jurisdiction—cases not brought within five years of accrual. 

Indeed, this language amounts to an ‘unequivocal statutory command to federal courts not to entertain’ an 

untimely claim.” Id. (citing Swain v. Pressley, 430 U.S. 372 (1977)). 

Further, it is significant that Section 2462 contains two exceptions to the five-year bar, for 

other statutes passed by Congress and for situations where the “offender or the property” is not 

within the United States such that proper service can be made. 28 U.S.C. § 2462. By expressing 

those two exceptions in the statute, Congress implicitly foreclosed any others. Christian Coal. of Fla., 

Inc. v. United States, 662 F.3d 1182, 1193 (11th Cir. 2011) (“The principle of expressio unius simply says 

that when a legislature has enumerated a list or series of related items, the legislature intended to 

exclude similar items not specifically included in the list.”). 

11 On appeal, the Eleventh Circuit affirmed in part and reversed in part, but did not reach the 

question whether Section 2462 creates a jurisdictional bar to claims more than five years old. SEC v. 

Graham, 823 F.3d 1357, 1360 n.1 (11th Cir. 2016). Thus, the district court’s ruling on that question, 

while not binding on this Court, remains valid. 

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Moreover, even if this Court chooses to reject the reasoning in Graham and enforces the 

tolling agreement, the SEC’s requests for disgorgement and penalties are still time-barred because 

the evidence shows that Mr. Keener began engaging in the transactions that the SEC says make him 

a dealer even before March 24, 2014. See CSOF ¶ 8 (citing transactions back to July 2010). At a 

minimum, the jury must decide whether the evidence of Mr. Keener’s conduct prior to March 24, 

2014 was sufficient to give the SEC a “complete and present cause of action.” Boneta v. Am. Med. 

Sys., No. 20-CIV-60409-RAR, 2021 WL 917871, at *10 (S.D. Fla. Mar. 10, 2021) (denying motion 

for summary judgment based on statute of limitations because issue of when claim accrued is a jury 

question).12

V. CONCLUSION 

The SEC asks the Court to adopt an interpretation of the Exchange Act that is both 

remarkably overbroad and extraordinarily particular, and upends decades of SEC guidance that 

establishes totally different factors for the identification of dealers. The support for its 

interpretation is Big Apple’s passing discussion of a Section 15(a) claim that was not briefed and was 

instead abandoned on appeal. When applying the actual dealer factors that have existed for decades, 

it is clear that Mr. Keener is not a dealer. Given that all reasonable inferences must be drawn in his 

favor, he must be allowed to demonstrate to a jury that he does not meet any of the dealer factors. 

The SEC’s motion must be denied. 

Dated: August 31, 2021 Respectfully submitted, 

GREENBERG TRAURIG LLP 

Benjamin G. Greenberg ______ 

Benjamin G. Greenberg 

Florida Bar No. 192732 

12 Mr. Keener is no longer asserting an estoppel or advice of counsel defense. However, as 

described in Mr. Keener’s Opposition to the SEC’s Motion in Limine, evidence regarding the 

attorneys that were involved in reviewing and approving all of Mr. Keener’s transactions is 

nevertheless relevant to this case. ECF No. 87, at 12-15. 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 36 of 38
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333 SE 2nd Avenue Suite 4400 

Miami, FL 33131 

Telephone: (305) 579-0850 

Facsimile: (305) 579-0717 

greenbergb@gtlaw.com

BUCKLEY 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 90 Entered on FLSD Docket 08/31/2021 Page 37 of 38
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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 Justin W. Keener’s Opposition to Plaintiff Securities and Exchange Commission’s 

Motion for Summary Judgment 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 31st day of August, 2021 

/s/ Benjamin G. Greenberg 

Benjamin G. Greenberg 

Case 1:20-cv-21254-BB Document 90 Entered on FLSD Docket 08/31/2021 Page 38 of 38