United States Court of Appeals 

for the Fifth Circuit 

No. 22-20622 

Commodity Futures Trading Commission, 

Plaintiff—Appellee, 

versus

EOX Holdings, L.L.C.; Andrew Gizienski, 

Defendants—Appellants. 

Appeal from the United States District Court 

for the Southern District of Texas 

USDC No. 4:19-CV-2901 

Before Jones, Stewart, and Duncan, Circuit Judges.

Edith H. Jones, Circuit Judge: 

EOX Holdings, LLC, and Andrew Gizienski (“Defendants”) appeal 

from adverse judgments in a novel civil liability suit filed by the Commodity 

Futures Trading Commission (“CFTC”) pursuant to 17 C.F.R. 

§ 155.4(b)(2)(i), a regulation that prevents commodities traders from “taking 

the other side of orders” without clients’ consent. We hold that the 

Defendants lacked fair notice of the CFTC’s unprecedented interpretation 

United States Court of Appeals 

Fifth Circuit 

FILED 

January 8, 2024 

Lyle W. Cayce 

Clerk 

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of this thirty-nine-year-old Rule. The judgment is REVERSED in part, the 

injunction VACATED in relevant part, and the case REMANDED.

I. 

The background of this case is the noisy, fast-moving, high-stakes 

world of electrical energy futures block trades. An energy future is an 

agreement to buy or sell energy for delivery or cash settlement in the future 

at a specified price. Those who trade in electric energy block futures include 

high-net-worth individuals as well as utilities and commercial or institutional 

producers or consumers of electricity seeking to “hedge,” that is, minimize 

losses from price changes. A trader looking for a suitable block trade reaches 

out to a broker like Gizienski with a bid or offer for a contract at a desired 

price, quantity, and duration. The broker then “blasts” the details to other 

traders, asking if anyone wants to take the offer. 

 Gizienski came to EOX in 2010 as the head of the Northeast Power 

Desk. He worked at the Houston office alongside five other brokers, seated 

at a conference room table, with a “squawk box” connected directly to 

traders by thirty-six high-speed lines. Two television monitors provided realtime audio and video of brokers’ desks in the other EOX offices around the 

country. As described in testimony at trial, the trading environment for 

electric energy futures block trades is controlled chaos, as block brokers 

communicate throughout the trading day with each other and with traders 

via “squawk box,” telephone, or internal instant messaging system. 

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In 2013, one of Gizienski’s clients, Jason Vaccaro, granted Gizienski a 

power of attorney allowing Gizienski to act on his behalf and to enter into 

block trade transactions at Gizienski’s discretion. The block trades at issue 

in this appeal arose from this discretionary account. EOX had a formal policy 

against its brokers’ handling such discretionary accounts. That policy had to 

be waived for Vaccaro. The Chief Executive Officer of EOX instructed his 

Houston branch manager to seek approval for the discretionary account from 

ICE Futures U.S., the online exchange on which the futures were traded.1

 

EOX obtained the necessary approval from ICE’s Head of Power and from 

the compliance departments of FCStone and Bank of America Merrill Lynch, 

two brokerage firms, which, as registered futures commission merchants, are 

legally authorized to clear trades and to hold and account for customer funds. 

After obtaining these authorizations, Gizienski could make specific 

trades, determining the quantity, price, and timing of the trades without first 

informing Vaccaro. Gizienski traded on Vaccaro’s behalf in that manner 

from August 2013 until May 2014, when Vaccaro directed him to stop. 

Neither EOX nor Gizienski disclosed to other EOX customers that 

Gizienski was exercising trading discretion on Vaccaro’s behalf in the same 

markets where Gizienski served as broker for those customers.

The CFTC filed this civil enforcement action against the Defendants 

in a four-count complaint in the Southern District of New York in 2018. It 

_____________________ 

1 ICE is a private “self-regulatory organization” which itself possesses some 

regulatory authority and imposes various rules on its traders. 

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accompanied its complaint with a press release accusing the Defendants of 

insider trading. As Gizienski later testified at trial, this negative publicity 

severely damaged his career and put him out of work for over two years. The 

case was transferred to the Southern District of Texas in 2019 and tried to a 

jury for seven days in 2022. Traders who appeared as witnesses testified that 

they had suffered no damage as a result of Gizienski’s conduct. The CFTC

dropped its claims for restitution and disgorgement. At the end of the 

evidence, the Defendants moved for judgment as a matter of law. The 

district court denied the motion from the bench and the case went to the jury. 

The jury found for the Defendants on Count I, flatly rejecting 

CFTC’s insider trading claim under Rule 180.1 of the Commodity Exchange 

Act. But the jury found for the CFTC on Count II, the sole count at issue 

in this appeal, which accused the Defendants of 

violat[ing] Rule 155.4 (1) by knowingly taking the other side of 

customer orders revealed to EOX or any of its affiliated 

persons without the customers’ prior consent one-hundred 

and twenty-two (122) times; and (2) by disclosing to Jason 

Vaccaro the orders of other customers held by EOX or any of 

its affiliated persons, when such disclosures were not necessary 

to the effective execution of the customer orders six (6) times. 

Specifically, the jury found that Gizienski “took the other side of orders” on 

65 of the 122 challenged transactions, in violation of Rule 155.4(b)(2)(i). The 

jury also found the Defendants liable on Count II for disclosing customer 

information, but the Defendants do not challenge this part of the verdict. For 

“taking the other side of orders,” the jury assessed a penalty, for regulatory 

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violations only, of $6.5 million.2 As this district court stated at the final 

hearing, “[t]here was no evidence at trial that any of Mr. Gizienski’s clients 

suffered a loss because of his conduct.”3

 The final judgment included an 

injunction, which the Defendants now challenge. The Defendants’ 

combined motions under Federal Rules of Civil Procedure 50 and 59 for a 

new trial or judgment as a matter of law were denied. This appeal followed. 

II. 

The Defendants make four principal arguments on appeal. First, they 

argue that the district court construed Rule 155.4(b)(2)(i) erroneously in its 

jury instruction. Specifically, the CFTC had not given them fair notice at 

the time they were engaging in the conduct that the CFTC newly claims to 

have violated the Rule. Second, even accepting the jury charge, the jury 

verdict lacked sufficient evidence. Third, the district court erred in various 

trial management decisions.4 Last, the injunction was overbroad.

_____________________ 

2

 In addition to the $6.5 million penalty for taking the other side of orders, the jury 

also imposed a penalty of $500,000 “for Mr. Gizienski’s disclosure of a customer’s 

material, nonpublic order information,” where the jury found that Gizienski had made such 

disclosures five times. On Counts III and IV, the jury also imposed on EOX penalties of 

$350,000 and $140,000 respectively. 

3

 The Defendants do not contest liability found by the jury under Count III

(“EOX failed to create and/or keep pre-trade communications relating to seven trades 

made in 2014 from the account that Mr. Gizienski managed for Jason Vaccaro.”) and 

Count IV (“EOX violated Rule 166.3,” which requires EOX “to both (1) establish 

adequate policies or procedures for the detection and deterrence of possible wrongdoing by 

its employees; and (2) follow those policies.”). 

4

 The Defendants argue that the district court erred by (1) giving the parties 

inadequate notice of the jury instruction, (2) excluding evidence regarding “eligible 

contract participants,” (3) submitting to the jury a verdict form that lacked the Defendants’ 

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As stated above, we hold that the Defendants did not have fair notice 

of the construction of Rule 155.4(b)(2)(i) at the time they were engaging in 

the challenged conduct. The penalty judgment and relevant portion of the 

injunction cannot be sustained. Because of this disposition, we need not 

address the Defendants’ other arguments. 

 This case was the first enforcement action brought by the CFTC for 

“taking the other side” under this thirty-nine-year-old Rule. The 

interpretation of Rule 155.4(b)(2)(i) is therefore a matter of first impression. 

We review the district court’s construction of the Rule de novo. 

9C Charles Alan Wright & Arthur R. Miller, Federal 

Practice and Procedure § 2558 (3d ed.) (“[F]ederal appellate courts 

evaluate the correctness of jury instructions regarding their statement of the 

law de novo.” (footnote omitted)); cf. United States v. Hamilton, 46 F.4th 

389, 393 (5th Cir. 2022) (“When a jury-instruction challenge ‘hinges on a 

question of statutory construction,’ our review is de novo.” (quoting United 

States v. Garcia-Gonzalez, 714 F.3d 306, 312 (5th Cir. 2013))). 

 Rule 155.4(b)(2)(i) states: 

No introducing broker or any of its affiliated persons shall: 

. . . 

Knowingly take, directly or indirectly, the other side of any 

order of another person revealed to the introducing broker or 

any of its affiliated persons by reason of their relationship to 

such other person, except with such other persons’s [sic] prior 

_____________________ 

“Special Interrogatories,” and (4) enforcing a ten-hour time limit on each party’s trial 

presentation. 

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consent and in conformity with contract market rules approved 

by or certified to the [CFTC]. 

17 C.F.R. § 155.4(b)(2)(i).5

 During the trial proceedings, the parties offered 

opposing definitions of “taking the other side of an order.” The Defendants 

argued that “taking the other side of an order” means “becoming a 

counterparty with a financial interest and the possibility of profit and loss.” 

The CFTC argued that “taking the other side of an order” means “mak[ing] 

the decision to trade opposite the order and execut[ing] the trade opposite 

the order.” The Defendants’ definition thus excluded brokers like Gizienski 

who exercise discretion over the accounts they trade, while the CFTC’s 

definition included such brokers. In the jury instructions, the district court 

accepted the CFTC’s construction of the Rule, defining “taking the other 

side of an order” as follows: 

An individual takes the other side of an order if he makes the 

decision to trade opposite the order and executes the trade 

opposite the order. It was not necessary for Mr. Gizienski to 

own or have a financial interest in the account he was trading 

from in order to take the other side of a customer order. 

 The Defendants argue that they did not have fair notice of the 

CFTC’s construction of the rule at the time of the conduct at issue because 

the CFTC altered its prosecution policies after “thirty-nine years of 

regulatory silence” about the meaning of Rule 155.4(b)(2)(i). The CFTC

responds that it has “consistently interpreted Rule 155.4(b)(2)(i) according 

_____________________ 

5

 It is undisputed that EOX is an “introducing broker” and Gizienski is its 

“affiliated person” in the meaning of Rule 155.4(b)(2)(i). 

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to its plain language,” and that this “controlling plain language” provided 

“fair notice” to the public. 

 In ruling for the CFTC on a motion to dismiss, the district court 

noted that “[n]othing in the language of Regulation 155.4(b)(2) limits its 

application to principals with an ownership or financial interest in a particular 

account, and none of the cases cited by the defendants either cite 

Regulation 155.4 or describe the CFTC’s view of that regulation’s scope.” 

The district court was correct that the text of Rule 155.4(b)(2)(i) does not 

limit its application to principals. But nothing extends its application beyond 

principals either. On its face, then, the text of Rule 155.4(b)(2)(i) is at best 

ambiguous. It did not give fair notice to the Defendants absent further 

guidance from the CFTC, and for nearly four decades, no such guidance 

came. 

 The fair notice doctrine is a “basic principle of administrative law.” 

SNR Wireless LicenseCo, LLC v. Fed. Commc’ns Comm’n, 868 F.3d 1021, 

1043 (D.C. Cir. 2017). As this court stated in an oft-cited case, “[i]f a 

violation of a regulation subjects private parties to criminal or civil sanctions, 

a regulation cannot be construed to mean what an agency intended but did 

not adequately express.” Diamond Roofing Co. v. Occupational Safety & 

Health Rev. Comm’n, 528 F.2d 645, 649 (5th Cir. 1976). The agency “must 

provide a reasonably clear standard of culpability to circumscribe the 

discretion of the enforcing authority and its agents.” Id. “In the absence of 

notice—for example, where the regulation is not sufficiently clear to warn a 

party about what is expected of it—an agency may not deprive a party of 

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property by imposing civil or criminal liability.” ExxonMobil Pipeline Co. v. 

U.S. Dep’t of Transp., 867 F.3d 564, 578 (5th Cir. 2017) (quoting Gen. Elec. 

Co. v. Env’t Prot. Ass’n, 53 F.3d 1324, 1328-29 (D.C. Cir. 1995)).6

Three cases support the conclusion that there was no fair notice here. 

In Upton v. Securities & Exchange Commission, cited by the Defendants, the 

Second Circuit considered how to construe a rule regulating broker-dealers. 

75 F.3d 92, 93 (2d Cir. 1996). The rule required broker-dealers to keep a 

separate bank account for customers, to calculate the amount to be deposited 

in that account every week “as of the close of the last business day of the 

week,” and to deposit that amount “no later than 1 hour after the opening of 

banking business on the second following business day.” Id. (quoting 

17 C.F.R. § 240.15c3-3(e)(3)). Upton’s firm complied with the “technical[] 

_____________________ 

6

 When, as here, a regulation is ambiguous, an agency may seek judicial deference 

to the agency’s interpretation under Auer v. Robbins, 519 U.S. 452, 117 S. Ct. 905 (1997). 

Here, the agency did not avail itself of Auer deference because of its view that the regulation 

plainly supports liability. We disagree. And in any event, “Auer deference is sometimes 

appropriate and sometimes not.” Kisor v. Wilkie, 588 U.S. __, 139 S. Ct. 2400, 2408 

(2019). In particular, “Auer deference does not apply if the petitioner ‘lacked fair notice’ 

of the agency’s interpretation of the regulation that the agency is advancing in the 

enforcement action.” ExxonMobil Pipeline Co., 867 F.3d at 573 (quoting Employer Sols. 

Staffing Grp. II, LLC v. Off. of Chief Admin. Hearing Officer, 833 F.3d 480, 487-88 (5th Cir. 

1976)); see also Kisor, 139 S. Ct. at 2417-18 (Courts “may not” afford Auer deference to 

agency interpretations that impose liability without “fair warning[.]” (quoting Christopher 

v. SmithKline Beecham Corp., 567 U.S. 142, 156, 132 S. Ct. 2156 (2012))); Christopher, 

567 U.S. at 156 n.15, 132 S. Ct. 2156 (“In penalty cases, courts will not accord substantial 

deference to an agency’s interpretation of an ambiguous rule in circumstances where the 

rule did not place the individual or firm on notice that the conduct at issue constituted a 

violation of a rule.” (quoting 1 Richard J. Pierce, Jr., Administrative Law 

Treatise § 6.11, at 543 (5th ed. 2010))). Because the “failure to give fair notice—on its 

own—justifies setting aside the imposed fine,” “further analysis” of the appropriate level 

of deference is “unnecessary.” Employer Sols., 833 F.3d at 489 n.7. 

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require[ments]” of the rule but evaded its impact by “pa[ying] down loans 

collateralized by customer securities just before the weekly . . . computation 

and replac[ing] them with unsecured loans; on the next business day, [it] 

reinstated the customer-secured loans.” Id. at 97, 93. The Commission 

found Upton liable for violating the regulation, but the Second Circuit 

vacated the order. Id. at 98. The court noted that the Commission “was 

aware that brokerage firms were evading the substance of Rule 15c3-3(e),” 

but “took no steps to advise the public that it believed the practice was 

questionable” at the time Upton was engaged in the practice except for “one 

consent order carrying little, if any, precedential weight.” Id. (quotation 

marks omitted). Therefore, the court held, “Upton was not on reasonable 

notice that [the firm’s] conduct might violate the Rule.” Id. 

Similarly, in Employer Solutions Staffing Group II, LLC v. Office of the 

Chief Administrative Hearing Officer, this court vacated an administrative law 

judge’s order for lack of fair notice. 833 F.3d 480, 491 (5th Cir. 2016). The 

Immigration and Nationality Act requires a “person or entity” wishing to 

hire an employee to “‘attest . . . on a form [established by the appropriate 

agency] by regulation, that it has verified that the individual is not an 

unauthorized alien by examining’ employee documents.” Id. at 485 (quoting 

8 U.S.C. § 1324a(b)(1)(A)). The petitioner in the case, a temporary staffing 

agency, divided this process into two parts whereby one corporate 

representative in El Paso, Texas, examined original documents in the 

presence of the hired employee, then “another corporate representative in 

Edina, Minnesota, inspected photocopies of the documents and completed” 

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the I-9 Form. Id. at 491. The form stated only that it was “[t]o be completed 

and signed by employer.” Id. at 488. The agency, however, argued that “the 

same . . . representative who examines an employee’s original documents 

must also meet with the employee and sign the . . . I-9 Form’s . . . 

attestation.” Id. at 485. The court rejected the agency’s interpretation 

because the petitioner “lacked fair notice” of that construction. Id. at 489. 

The court noted that “neither Congress nor [the Department of Homeland 

Security] had ever declared a bar to corporate attestation prior to this 

enforcement action.” Id. Consequently, “the most reasonable 

interpretation permits corporate attestation,” and the petitioner “did not 

violate the law.” Id. at 491. 

In contrast, fair notice was afforded in Consol Pennsylvania Coal Co. v. 

Federal Mine Safety & Health Review Commission, 941 F.3d 95, 112-13 (3d Cir. 

2019), cited by the CFTC. The regulation at issue imposed obligations on 

mine operators “once the operator knows or should know that an accident 

has occurred involving . . . [a]n injury of an individual at the mine which has 

a reasonable potential to cause death.” Id. at 104. An individual at the mine 

“was crushed between two multi-ton pieces of mining equipment.” Id. at 

100. He said he was in a lot of pain and could not move his legs. Id. The 

company argued that because “the Commission’s legal standard fails to 

provide fair notice of how it will be applied,” “Consol lacked fair notice that 

the specific factual scenario at issue . . . would constitute” a violation. Id. at 

113. The court disagreed, holding that there had been fair notice, because 

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“we think it extraordinarily clear that the injuries in this case reflected a 

reasonable potential for death.” Id. 

Here, as in Upton, the CFTC had never publicly stated that to “take 

the other side of trades” includes the broker’s trading for a discretionary 

account without himself having a financial interest in that account. See

75 F.3d at 98. Indeed, the cases cited by the agency provide no evidence of 

such a gloss to that phrase, even though Rule 155.4(b)(2)(i) has been in 

existence since 1984 and has applied to electric energy futures block trades 

since 2012. As in Employer Solutions, this enforcement action is the first time 

the CFTC has advanced this interpretation of the Rule. See 833 F.3d at 489. 

And unlike Consol Pennsylvania Coal, where it was “extraordinarily clear” to 

the court that having one’s legs crushed in a piece of mining equipment “has 

a reasonable potential to cause death,” it would not have been clear to the 

Defendants that the phrase “taking both sides of an order” applied to their 

conduct. See 942 F.3d at 113. Importantly, the Defendants sought and 

obtained prior approval from ICE, which has authority to impose rules on its 

traders, and whose rules do not prohibit Gizienski’s activity. See ICE 

Futures U.S., Inc., Trading Rules 4.07(a)(i). They further 

obtained approval from FCStone and Bank of America Merrill Lynch, all 

with no indication that Gizienski’s conduct might be in violation of the law. 

The CFTC had issued no guidance that might have put the Defendants on 

notice that they were violating Rule 155.4(b)(2)(i). Over the course of nearly 

four decades, the CFTC had taken “no steps to advise the public that it 

believed the practice was questionable.” See Upton, 75 F.3d at 98. 

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The CFTC asserts that its interpretation of Rule 155.4(b)(2)(i) tracks 

language in the Federal Register about the prevention of “bucketing.” See

Rules Relating to Intermediaries of Commodity Interest Transactions, 

66 Fed. Reg. 53,510, 53,513-14 (Oct. 23, 2001) (“Rules 155.1, 155.3 and 155.4 

have helped the Commission to deter such practices as ‘front-running,’ 

‘trading ahead,’ ‘bucketing,’ and improper disclosure of customer 

orders.”).7

 If anything, this language undermines the CFTC’s position. 

The CFTC’s own online glossary defines “bucketing” as “[d]irectly or 

indirectly taking the opposite side of a customer’s order into a broker’s own 

account or into an account in which a broker has an interest, without open and 

competitive execution of the order on an exchange.” CFTC, Futures 

Glossary: A Guide to the Language of the Futures 

Industry (emphasis added).8

 But Gizienski did not own or have an 

interest in the account at issue here. It is unclear how the reference to 

“bucketing” could have put him on notice that his conduct violated 

Rule 155.4(b)(1)(2)(i). 

The parties cite two previous enforcement actions alleging 

“bucketing,” but both involve brokers who, unlike Gizienski, had an 

ownership interest in the relevant accounts. In CFTC v. Topworth 

_____________________ 

7

 As the CFTC notes, the Rule also prohibits improper disclosure of customer 

information, but the Defendants do not challenge that part of the verdict. 

8

 Available online at: 

https://www.cftc.gov/LearnAndProtect/AdvisoriesAndArticles/CFTCGlossary

/index.htm. 

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International, Ltd., a receiver found that the defendant corporation had 

possibly engaged in metals-futures “bucketed trades” where it did not 

actually execute its customers’ orders, instead “tak[ing] into its own account 

the opposite side of a given trade.” 205 F.3d 1107, 1110 (9th Cir. 1999), as 

amended (Mar. 23, 2000). The receiver therefore decided to distribute the 

defendant’s remaining funds pro rata to investors, a plan that the Ninth 

Circuit upheld over the objections of an individual investor. Id. at 1116. 

Topworth suggests that “bucketing” requires an ownership interest in the 

underlying account. It does not analyze whether it is ever possible to take the 

opposite side of a given trade without taking it “into [one’s] own account.” 

Id. at 1110. 

Similarly, in Purdy v. CFTC, this court defined “bucketing” in the 

context of “precious metal leverage contracts” as 

[the] method of doing business wherein orders of customers for 

the purchase or sale of commodities for future delivery, instead 

of being executed by bonafide purchases and sales with other 

traders, are simply matched and offset in the soliciting firm’s 

own office and the firm itself takes the opposite side of the 

customers’ orders. 

968 F.2d 510, 520 (5th Cir. 1992) (quoting 80 Cong. Rec. 8088 (May 27, 

1936) (remarks of Senator Pope)) (upholding the findings made by an 

administrative law judge and affirmed by the CFTC that “bucketing” 

violations did not exist). Like Topworth, Purdy also suggests that “bucketing” 

requires an ownership interest in the underlying account. 

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 Neither case addresses the facts before this court, but by negative 

implication both Purdy and Topworth suggest that a broker engages in 

“bucketing” or in “taking the other side” of an order only if he has an 

ownership interest in the account. Gizienski undisputedly did not have any 

such interest. Therefore, without further guidance from the CFTC, the 

language in the Federal Register about “bucketing” could not have put the 

Defendants on fair notice that the agency might attempt to construe 

Rule 155.4(b)(2)(i) to prohibit Gizienski’s conduct. 

The trial testimony likewise suggests that the phrase “taking the other 

side of orders” was at best ambiguous. For example, one witness stated, 

without defining the term, that it was not common for brokers to “trade on 

the opposite side of customer orders.” When asked why he did not trade on 

the opposite side of customer orders, he implied it was because he was not 

rich enough to do so:

Well, first of all, the products are very big and expensive. Like 

hundreds of thousands, millions of dollars in each transaction. 

And so I couldn’t afford it. Also, you just don’t. You don’t do 

it as a broker. You don’t trade. You know, you’re supposed to 

be just in the middle, a middleman. And you’re trying to align 

a buyer and a seller into a willing transaction where everyone is 

happy. 

This comment might imply that anyone trading on the opposite side of 

customer orders would have to be very rich in order to do so. But on the 

other hand, it might imply that such trades would require decisionmaking 

power over a discretionary account owned by another. The comment is not 

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dispositive either way, but it seems to lend support to the Defendants’ 

interpretation of the phrase.

Similarly, the repeated statements by witnesses that no one at EOX

had discretionary authority over customer accounts may show that such 

authority was rare at that firm or perhaps in the industry as a whole, but they 

shed no light on the definition of “taking the other side of trades.” In fact, 

the rarity of such a situation may explain why the phrase was never defined 

specifically to prohibit discretionary trading in addition to trading for one’s 

own account. 

In conclusion, we find the CFTC’s construction of the Rule to be 

thoroughly unpersuasive. Maybe, as the CFTC stated at oral argument, the 

agency has reasons for wishing to regulate such conduct. But if so, “it is the 

regulation as written which must bear the blame.” Diamond Roofing Co., 

527 F.2d 645 at 650. We therefore hold that the Rule applies only to brokers 

and affiliated persons who “becom[e] a counterparty with a financial interest 

and the possibility of profit and loss,” and not to those who merely “make 

the decision to trade opposite the order and execute the trade opposite the 

order.” As noted above, “a regulation cannot be construed to mean what an 

agency intended but did not adequately express.” Id. at 649.

III. 

The district court’s fashioning of injunctive relief is reviewed for 

abuse of discretion. Thomas v. Hughes, 27 F.4th 995, 1011 (5th Cir. 2022). 

The portion of the injunction challenged by the Defendants states: 

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Pursuant to Section 6c of the Commodity Future Trading Act 

(the “Act”), 7 U.S.C. § 13a-1, EOX and Gizienski are 

permanently restrained, enjoined, and prohibited from directly 

or indirectly: 

a. Disclosing the orders of other customers held by them 

or any affiliated persons, unless such disclosure is 

necessary to the effective execution of such order or is 

made at the request of an authorized representative of 

the CFTC, the contract market on which such order is 

to be executed, or a futures association registered with 

the CFTC pursuant to section 17 of the Act, in violation 

of Regulation 155.4(b)(1), 17 C.F.R. § 155.4(b)(1) 

(2021); and 

b. Knowingly taking, directly or indirectly, the other 

side of any order of another person revealed to them or 

any affiliated persons by reason of their relationship to 

such other person, except with such other person’s 

prior consent and in conformity with contract market 

rules approved by or certified to the CFTC, in violation 

of Regulation 155.4(b)(2), 17 C.F.R. § 155.4(b)(2) 

(2021). 

The Defendants argue that an injunction must “describe in reasonable 

detail . . . the act or acts restrained or required.” Fed. R. Civ. 

P. 65(d)(1)(C). General injunctions which in essence order a defendant to 

obey the law, they say, are prohibited. Sec. & Exch. Comm’n v. Life Partners 

Holdings, Inc., 854 F.3d 765, 784 (5th Cir. 2017). The injunction in this case 

is invalid, according to the Defendants, because it “merely tracked the 

statutory language and was not limited to the violations found by the Jury.” 

The Defendants argue that the CFTC could seek contempt sanctions 

against them without filing a new enforcement action alleging different 

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violations of these provisions, “for the purpose, for example, of denying 

[them] their right to a jury trial.” 

But an injunction not to disobey a specific law is not overbroad, as the 

CFTC correctly argues. See id. at 784-85. 

Because the Defendants lacked fair notice of the CFTC’s 

construction of Rule 155.4(b)(1)(2)(i), we VACATE Paragraph 4(b) of the 

injunction. But the Defendants’ overbreadth challenge fails as applied to 

Paragraph 4(a).9

IV. 

In conclusion, we REVERSE the penalty judgment because 

Rule 155.4(b)(2)(i), as written, does not apply to the Defendants’ actions; we 

VACATE Paragraph 4(b) of the injunction; and we REMAND for entry of 

judgment in accordance herewith. 

_____________________ 

9

 The CFTC argues that the Defendants waived this argument in any event 

because they failed to raise it in the motion for judgment as a matter of law. The Defendants 

reply that they properly preserved their objection. Since neither party cites sources for its 

interpretation of the law here, this court assumes without deciding that the issue was not 

waived. 

Case: 22-20622 Document: 00517025556 Page: 18 Date Filed: 01/08/2024