Hearing Date: May 24, 2013

Time: 10:00 a.m. Eastern Time

Location: New York, New York

Jonathan L. Marcus, General Counsel

Robert B. Wasserman, Chief Counsel, Division of Clearing and Risk

Martin B. White, Assistant General Counsel

Robert A. Schwartz, Assistant General Counsel

U.S. COMMODITY FUTURES TRADING COMMISSION

Three Lafayette Plaza

1155 21st Street N.W.

Washington, DC 20581

(202) 418-5000 

jmarcus@cftc.gov

rwasserman@cftc.gov

mwhite@cftc.gov

rschwartz@cftc.gov

UNITED STATES BANKRUPTCY COURT

SOUTHERN DISTRICT OF NEW YORK

In re:

MF GLOBAL HOLDINGS LTD., et al., 

Debtors.

Chapter 11

Case No. 11-15059 (MG) 

(Jointly Administered)

LIMITED OPPOSITION OF THE COMMODITY FUTURES TRADING COMMISSION 

TO THE AMENDED THIRTEENTH OMNIBUS OBJECTION OF PLAN 

PROPONENTS SEEKING TO RECLASSIFY CERTAIN CLAIMS

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TABLE OF CONTENTS

TABLE OF CONTENTS................................................................................................................. i

TABLE OF AUTHORITIES .......................................................................................................... ii

BACKGROUND ............................................................................................................................ 1

ARGUMENT.................................................................................................................................. 3

CONCLUSION............................................................................................................................... 9

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ii

TABLE OF AUTHORITIES

Cases

Bhd. of R.R. Trainmen v. Balt. & Ohio R.R., 331 U.S. 519 (1947) ................................................ 8

CFTC v. British Am. Commodity Options Corp., 788 F.2d 92 (2d Cir. 1986)........................... 5, 8

CFTC v. Wilshire Investment Management Corp., 531 F.3d 1339 (11th Cir. 2008)...................... 8

Comm. to Stop Airport Expansion v. FAA, 320 F.3d 285 (2d Cir. 2003)....................................... 8

HUD v. Cost Control Mktg. & Sales Mgmt., 64 F.3d 920 (4th Cir. 1995)..................................... 4

In re Schaffer, 515 F.3d 424 (5th Cir. 2008) .............................................................................. 4, 8

In re Schultz Broadway Inn, Ltd., 89 B.R. 43 (Bankr. W.D. Mo. 1988), 

aff’d, 912 F.2d 230 (8th Cir. 1990)............................................................................................. 4

In re Seneca Oil Company, 906 F.2d 1445 (10th Cir. 1990).................................................. 4, 5, 7

Johnson v. SEC, 87 F.3d 484 (D.C. Cir. 1996)............................................................................... 4

Meeker v. Lehigh V. R. Co., 236 U.S. 412 (1915) .......................................................................... 4

Riordan v. SEC, 627 F.3d 1230 (D.C. Cir. 2010)........................................................................... 5

SEC v. Bilzerian, 29 F.3d 689 (D.C. Cir. 1994) ............................................................................. 5

SEC v. DiBella, 409 F. Supp. 2d 122 (D. Conn. 2006)............................................................... 4, 6

SEC v. First City Financial Corp., 890 F.2d 1215 (D.C. Cir. 1989).............................................. 5

SEC v. Lorin, 869 F. Supp. 1117 (S.D.N.Y. 1994)..................................................................... 4, 6

SEC v. Robinson, No. 00-cv-7452, 2002 WL 1552049 (S.D.N.Y. Jul. 16, 2002).......................... 5

SEC v. Texas Gulf Sulphur Co., 446 F.2d 1301 (2d Cir. 1971)...................................................... 4

Texas American Oil Corp. v. U.S. Department of Energy, 44 F.3d 1557 (Fed. Cir. 1995)............ 7

United States ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 

110 F.3d 861 (2d Cir. 1997)........................................................................................................ 8

Statutes

7 U.S.C. § 2(a) ................................................................................................................................ 1

7 U.S.C. § 4d(a)(2).......................................................................................................................... 1

7 U.S.C. § 5(b)................................................................................................................................ 1

7 U.S.C. § 13a-1...................................................................................................... 1, 2, 3, 4, 5, 8, 9

11 U.S.C. § 726................................................................................................................... 3, 4, 7, 9

Dodd-Frank, Pub. L. No. 111-203, § 744, 124 Stat. 1376, 1735 (July 21, 2010)....................... 8, 9

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The Commodity Futures Trading Commission (“CFTC” or “Commission”) opposes the 

Amended Thirteenth Omnibus Objection of Plan Proponents Seeking to Reclassify Certain 

Claims (“Amended Objection”) (ECF Doc. 1317) to the extent the Amended Objection seeks to 

subordinate the CFTC’s contingent equitable claims for disgorgement or restitution on behalf of

injured MF Global, Inc., commodity customers. As explained below, the Bankruptcy Code 

provides for subordination of any fine, penalty, or forfeiture. It does not allow subordination of 

non-punitive claims for restitution or disgorgement. Thus, the Amended Objection should be 

overruled in part.

BACKGROUND

1. The Commodity Exchange Act (“CEA” or the “Act”) charges the CFTC with, among 

other things, protecting commodity-market participants from fraudulent or other abusive 

practices and misuses of customer assets. 7 U.S.C. § 5(b). The CEA provides that a futures 

commission merchant (FCM) must segregate and separately account for all customer property 

that the FCM receives to margin, guarantee, or secure a commodity transaction. Id. § 4d(a)(2). 

The Act also provides that a principal is liable for its agent’s violations of the Act. Id. 

§ 2(a)(1)(B). Section 6c of the Act states that “[w]henever it shall appear to the Commission that 

any” person, including any entity, “has engaged, is engaging, or is about to engage in any” 

violation of the CEA or any CFTC regulation, the “Commission may bring an action in the 

proper district court of the United States.” Id. § 13a-1(a).

2. The Act specifies several remedies the Commission may pursue and that a court may 

grant to redress such violations. The Commission may obtain:

(i) a “permanent or temporary injunction or restraining order,” id. § 13a-1(b);

(ii) “writs of mandamus,” id. § 13a-1(c);

(iii) “a civil penalty,” id. § 13a-1(d)(1)(A)-(B);

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(iv) “restitution to persons who have sustained losses proximately caused by such 

violation (in the amount of such losses),” id. § 13a-1(d)(3)(A); and

(v) “disgorgement of gains received in connection with such violation,” id. § 13a1(d)(3)(B).

3. On August 21, 2012, the CFTC timely filed Proof of Claim forms setting forth 

contingent, unliquidated claims against each of the six debtors in this Chapter 11 proceeding. 

(Declaration of Robert A. Schwartz in Support of the Limited Opposition of the Commodity 

Futures Trading Commission to the Amended Thirteenth Omnibus Objection of Plan Proponents 

Seeking to Reclassify Certain Claims (“Schwartz Decl.”) Exs. A-F.) Item 2 of each Proof of 

Claim form requests the “Basis for Claim.” In response, on each form, the CFTC referenced an 

Attachment. (Id.) The Attachments submitted with each Proof of Claim form explain that each 

claim was filed to preserve the Commission’s rights to bring litigation against each debtor for 

violations, if any, of the CEA or CFTC regulations, in the event the Commission determines that 

that such law was violated: 

On October 31, 2011, the Commission’s Division of Enforcement opened an 

investigation into whether the Commodity Exchange Act or Commission 

regulations were violated. It is possible that this investigation may lead to 

litigation involving [the debtor]. The Commission is filing this protective proof 

of a contingent unliquidated claim to preserve the Commission’s rights in that 

event.

(Id. (Attachments).) 

Item 5 of each Proof of Claim form asks the claimant to indicate, by checking a box, 

whether “any part of the claim” includes “Taxes or penalties owed to governmental units.” 

(Schwartz Decl. Exs. A-F.) The CFTC checked that box on each of the six Proof of Claim 

forms, indicating that “part of the claim” includes penalties. (Id.) 

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4. On March 6, 2013, the Plan Proponents filed the Thirteenth Omnibus Objection of 

Plan Proponents Seeking to Reclassify Certain Claims. (ECF Doc. 1163.) The Plan Proponents 

stated that the CFTC’s six claims are “on account of tax penalties” and sought an order 

subordinating them pursuant to 11 U.S.C. § 726(a)(4). In support, the Plan Proponents submitted 

the Declaration of Scott A. Rinaldi in Support of the Thirteenth Omnibus Objection of Plan 

Proponents Seeking to Reclassify Certain Claims. (ECF Doc. 1163 at 11.) The declarant, Scott 

A. Rinaldi of FTI Consulting Inc., stated that “I, or employees of FTI under my supervision and 

direction, personally reviewed” the CFTC’s claims and others and “[b]ased upon such review, I 

believe that each of” the CFTC’s claims (along with the other listed claims) “is a claim on 

account of a non-pecuniary tax penalty.” (ECF Doc. 1163 at 12.) 

5. On April 9, 2013, counsel for the CFTC communicated by email to counsel for the 

Plan Proponents, informing them that their characterization of the CFTC’s claims as “claims ‘on 

account of a non-pecuniary tax penalty” was erroneous. (Schwartz Decl. ¶ 8.) On April 12, 

2013, counsel for the CFTC spoke by telephone with counsel for the Creditor Co-Proponents 

(ECF Doc. 1317 at 3 n.5) and informed them that the claims covered by the CFTC’s Proof of 

Claim forms include claims not only for civil penalties, but also for restitution and disgorgement, 

and that these latter two categories of claims are not subject to subordination under the 

Bankruptcy Code (Schwartz Decl. ¶ 9).

6. On April 16, 2013, the Plan Proponents filed the Amended Objection.

ARGUMENT

The CFTC’s claims may only be subordinated to the extent they include a “fine, penalty, 

or forfeiture.” 11 U.S.C. § 726(a)(4). To the extent the CFTC’s claims include restitution and 

disgorgement under 17 U.S.C. § 13a-1(d)(3)(A) and (B), they may not be subordinated.

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Whether a claim is for a “fine, penalty, or forfeiture” depends on whether it is punitive or

remedial, i.e., whether it seeks to punish the wrongdoer or merely to restore the status quo before 

the wrongdoing. SEC v. Lorin, 869 F. Supp. 1117, 1122-23 (S.D.N.Y. 1994); accord Meeker v. 

Lehigh V. R. Co., 236 U.S. 412, 423 (1915); In re Schaffer, 515 F.3d 424, 428 (5th Cir. 2008);

Johnson v. SEC, 87 F.3d 484, 491 (D.C. Cir. 1996); HUD v. Cost Control Mktg. & Sales Mgmt.,

64 F.3d 920, 928 (4th Cir. 1995); In re Schultz Broadway Inn, Ltd., 89 B.R. 43, 44 (Bankr. W.D. 

Mo. 1988), aff’d, 912 F.2d 230 (8th Cir. 1990).

1 The CEA provides for both types of sanction –

punitive sanctions in the form of civil penalties under 7 U.S.C. § 13a-1(d)(1), and remedial 

sanctions including “restitution to persons who have sustained losses” and “disgorgement of 

gains” under 7 U.S.C. § 13a-1(d)(3)(A) and (B), respectively.

Non-criminal restitution is presumptively remedial. SEC v. Texas Gulf Sulphur Co., 446 

F.2d 1301, 1308 (2d Cir. 1971) (“Restitution of the profits on these transactions merely deprives 

the appellants of the gains of their wrongful conduct.”); accord Johnson, 87 F.3d at 491 (holding 

that sanction was remedial, not punitive, “where the effect ... is to restore the status quo ante, 

such as through a proceeding for restitution”); SEC v. DiBella, 409 F. Supp. 2d 122, 127 (D. 

Conn. 2006) (following Johnson). For example, in In re Seneca Oil Company, 906 F.2d 1445

(10th Cir. 1990), the Department of Energy (“DOE”) alleged that the debtor overcharged 

purchasers of crude oil, and DOE therefore sought restitution on behalf of those customers. Id. 

at 1456. Plan proponents sought to subordinate DOE’s claim, arguing that they were claims for a 

“fine, penalty, or forfeiture” under section 726(a)(4). The Tenth Circuit held that DOE’s 

restitution claim was not penal and could not be subordinated because “(1) the claim [wa]s based 

 1 Certain of the cited cases concern section 523(a)(7) rather than 726(a)(4), but “the phrase ‘fine, 

penalty, or forfeiture’ as it appears in § 726(a)(4) must have the same meaning as in 

§ 523(a)(7).” Pa. Dep’t of Pub. Welfare v. Davenport, 495 U.S. 552, 561-62 (1990).

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solely on actual pecuniary loss, (2) the purpose of the claim [wa]s restitutionary rather than 

penal, and (3) the statutory scheme support[ed] the restitutionary nature of the claim.” Id. at 

1455. As to the “statutory scheme,” the court found it persuasive that the relevant sections 

provided for restitution as well as civil penalties, making clear that a “restitution” claim under 

the statute was distinct and remedial. Id. at 1456.

The restitution remedy under the CEA, 7 U.S.C. § 13a-1(d)(3)(A), shares each of these 

characteristics. First, the claim is based solely on actual pecuniary loss because the statute 

explicitly ties the recovery to “the amount of such losses.” Id. § 13a-1(d)(3)(A). Second, a

“restitutionary rather than penal” purpose is explicit in the statute—to compensate “persons who 

have sustained losses proximately caused” by the violation. Id. Finally, the statutory scheme, 

like the statute at issue in Seneca Oil, separately provides for “a civil penalty,” confirming that 

the restitution remedy is distinct and non-punitive. Id. § 13a-1(d)(1).

The remedial, non-punitive purpose of disgorgement under the CEA is equally clear. “It 

is well established that disgorgement is remedial rather than punitive, since a fundamental policy 

underlying disgorgement is to prevent the unjust enrichment of the wrongdoer rather than to 

punish him.” SEC v. Robinson, No. 00-cv-7452, 2002 WL 1552049, at *7 (S.D.N.Y. Jul. 16, 

2002). Indeed, “disgorgement may not be used punitively.” SEC v. First City Financial Corp., 

890 F.2d 1215, 1231 (D.C. Cir. 1989); see also Riordan v. SEC, 627 F.3d 1230, 1234 (D.C. Cir. 

2010) (“[D]isgorgement orders are not penalties, at least so long as the disgorged amount is 

causally related to the wrongdoing.”); SEC v. Bilzerian, 29 F.3d 689, 696 (D.C. Cir. 1994)

(“[W]e conclude that the disgorgement order is remedial in nature and does not constitute 

punishment within the meaning of double jeopardy.”); CFTC v. British Am. Commodity Options 

Corp., 788 F.2d 92, 93 (2d Cir. 1986) (“[T]he party seeking disgorgement must distinguish 

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between the legally and illegally derived profits.”). It “merely deprives one of wrongfully 

obtained proceeds” and thus “returns the wrongdoer to the status quo before any wrongdoing had 

occurred.” Lorin, 869 F. Supp. at 1122; see also DiBella, 409 F. Supp. 2d at 127 

(“Disgorgement ... merely dispossesses the wrongdoer of the profits earned from illegal 

conduct.”).

None of the Plan Proponents’ arguments to the contrary have merit.

First, Plan Proponents’ statement that the CFTC “concedes that its claims are for ‘taxes 

or penalties’” (ECF Doc. 1317 at 7 (citing proofs of claim)) lacks a good-faith basis. The cited 

claim forms ask whether “any part of the claim” is for “[t]axes or penalties.” (Schwartz Dec. 

Exs. A-F. (emphasis added).) The CFTC’s affirmative responses indicates that “part of the 

claim” against each debtor is for penalties. As the Plan Proponents state in a footnote, prior to 

the filing of the Amended Objection, “counsel for the Creditor Co-Proponents conferred with 

counsel for the CFTC to discuss the CFTC Claims and the Plain Proponents’ position that the 

CFTC Claims should be reclassified as Subordinated Claims.” (ECF Doc. 1317 at 3 n.3.) In that 

conference, counsel for the CFTC informed counsel for the Plan Proponents that only a portion 

of each of the CFTC’s claims relates to penalties, and that each claim also includes restitution 

and disgorgement, which may not be subordinated. (Schwartz Decl. ¶ 9.)

Second, Plan Proponents misconstrue section 726(a)(4) of the Bankruptcy Code in 

arguing that a claim is “considered a penalty” if it is “not intended to compensate the claimant,” 

but an injured third-party. (ECF Doc. 1317 at 6 (emphasis added); see also id. at 7 (arguing for 

subordination “because the CFTC itself has not suffered any loss”).) That is not what section 

726(a)(4) says. Rather, it states that a claim is subordinated if it is: “for any fine, penalty, or 

forfeiture ... to the extent that such fine, penalty, forfeiture” is “not compensation for actual 

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pecuniary loss suffered by the holder of such claim.” 11 U.S.C. § 726(a)(4) (emphases added). 

In other words, if a claim is for a fine, penalty, or forfeiture, it is subordinated unless it intended 

to compensate the claimant. If the claim is not for a fine, penalty, forfeiture, it is not covered by 

section 726(a)(4) and is therefore not subordinated.

2

 The court in Seneca Oil correctly rejected 

the same argument the Plan Proponents assert here:

The language of Section 726(a)(4) does not provide that a claim is a fine, penalty, 

or forfeiture unless the holder of the claim is seeking recovery for actual loss to 

the holder. Rather, the language provides that a fine, penalty, or forfeiture will be 

accorded fourth priority only “to the extent that such fine, penalty, [or] forfeiture 

... [is] not compensation for actual pecuniary loss suffered by the holder of such 

claim.” Thus, the language makes actual pecuniary loss to the holder of the claim 

relevant only if a fine, penalty, or forfeiture is involved. That language does not 

state that if a claim is not for pecuniary loss to the holder of the claim the claim 

automatically is a fine, penalty, or forfeiture.

906 F.2d at 1455-56 (emphasis added; alterations in Seneca Oil). 

Texas American Oil Corp. v. U.S. Department of Energy, 44 F.3d 1557 (Fed. Cir. 1995)

(ECF Doc. 1317 at 6-7), cited by the Plan Proponents, is not to the contrary. In Texas American 

Oil, while DOE sought a claim it termed “restitution,” it was “undisputed that no significant 

restitution ha[d] been made or [wa]s expected to be made to any person who actually suffered a 

pecuniary loss.” Id. at 1569. Instead, recovered funds would be “retained for government use.” 

Id. The court held that true restitution requires “some relationship between the person injured 

and the recipient of the recovery.” Id. Because the government intended to retain the money 

although it had “expended no funds and suffered no actual loss,” the claims were, for purposes of 

section 726(a)(4), “non-compensatory penalties and forfeitures,” which must be subordinated. 

 2 Section 726(a)(4) provides for the same treatment of “multiple, exemplary, or punitive 

damages.” 11 U.S.C. § 726(a)(4). Plan Proponents do not assert that the CFTC’s claims are for 

multiple, exemplary, or punitive damages.

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Id. at 1571. Here, by contrast, the CEA limits the CFTC’s restitution claims to “restitution to 

persons who have sustained losses.” 7 U.S.C. § 13a-1(d)(3)(A).

Finally, it is irrelevant that these equitable remedies appear in a section with the heading

“civil penalties.” See Bhd. of R.R. Trainmen v. Balt. & Ohio R.R., 331 U.S. 519, 528 (1947)

(“That the heading ... fails to refer to all the matters which the framers of that section wrote into 

the text is not an unusual fact.”). Section headings “cannot limit the plain meaning of the text.” 

Id. at 528-29. “[N]or are they necessarily designed to be a reference guide or a synopsis.” 

United States ex rel. Thistlethwaite v. Dowty Woodville Polymer, Ltd., 110 F.3d 861, 866 (2d 

Cir. 1997). Here, because the statute text provides for “civil penalt[ies],” 7 U.S.C. § 13a-1(d)(1), 

separately from the provisions for restitution and disgorgement, id. § 13a-1(d)(1), “a plain 

reading of the text suggests that” the latter “are not a fine, penalty, or forfeiture,” Schaffer, 515 

F.3d at 428. The Court “should not interpret the statute in a way that erases that distinction.” 

Comm. to Stop Airport Expansion v. FAA, 320 F.3d 285, 289 (2d Cir. 2003) (rejecting reliance 

on a section heading where “Congress distinguished between ... two types of agency power”).

The legislative history of 7 U.S.C. § 13a-1(d)(3)(A) and (B) confirms their remedial 

character. Both provisions were added to the CEA in Section 744 of the Dodd-Frank Wall Street 

Reform and Consumer Protection Act (“Dodd-Frank”). Dodd-Frank, Pub. L. No. 111-203, 

§ 744, 124 Stat. 1376, 1735 (July 21, 2010). Prior to Dodd-Frank, courts held that the CFTC’s 

power under 7 U.S.C. § 13a-1(b) to obtain an “injunction” included the power to obtain equitable 

remedies. See, e.g., British Am. Commodity Options Corp., 788 F.2d at 94. However, in CFTC 

v. Wilshire Investment Management Corp., 531 F.3d 1339 (11th Cir. 2008), the U.S. Court of 

Appeals for the Eleventh Circuit held that such relief must be limited to the amount of the 

defendant’s unjust enrichment. Id. at 1345. If victims’ losses were greater than that amount, the 

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Wilshire court held that the CFTC could not seek complete redress on their behalf. Id. DoddFrank Section 744, sometimes called the “Wilshire fix,” reversed that outcome, confirming that 

the CFTC has the power not only to pursue fines and disgorge profits, but to make victims 

whole:

SEC. 744. RESTITUTION REMEDIES

Section 6(c)(d) of the Commodity Exchange Act (7 U.S.C. 13a-1(d)) is 

amended by adding at the end the following:

“(3) EQUITABLE REMEDIES.—In any action brought under this 

section, the Commission may seek, and the court may impose, on a proper 

showing, on any person found in the action to have committed any 

violation, equitable remedies including—

“(A) restitution to persons who have sustained losses 

proximately caused by such violation (in the amount of such 

losses); and

“(B) disgorgement of gains received in connection with 

such violation.”.

Dodd-Frank, Pub. L. No. 111-203, § 744, 124 Stat. 1376, 1735. 

Congress thus clarified that in addition to the express authority to seek civil penalties for 

wrongdoing, the CFTC may also seek a full range of equitable remedies, including restitution 

and disgorgement, to restore the status quo ex ante—quintessentially non-punitive functions, 

giving rise to claims that are not subject to subordination under 11 U.S.C. § 726(a)(4). Thus, the 

purpose of the CFTC’s filing claims here, in accordance with 7 U.S.C. § 13a-1, is to protect its 

ability in the event it determines that the law was violated, to make victims whole, disgorge 

wrongdoers of the gains received, and to pursue such punitive sanctions as the Commission 

determines are appropriate.

CONCLUSION

For the foregoing reasons, the Amended Objection should be overruled to the extent it 

seeks to subordinate the CFTC’s claims for restitution or disgorgement under 7 U.S.C. § 13a1(d)(3).

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Respectfully submitted,

COMMODITY FUTURES TRADING COMMISSION

By: /s/ Robert A. Schwartz 

Jonathan L. Marcus, General Counsel

Robert B. Wasserman, 

 Chief Counsel, Division of Clearing and Risk

Martin B. White, Assistant General Counsel

Robert A. Schwartz, Assistant General Counsel

U.S. Commodity Futures Trading Commission

Three Lafayette Plaza

1155 21st Street N.W.

Washington, DC 20581

(202) 418-5000 

jmarcus@cftc.gov

rwasserman@cftc.gov

mwhite@cftc.gov

rschwartz@cftc.gov

Dated: May 9, 2013

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CERTIFICATE OF SERVICE

I hereby certify that on May 9, 2013, I caused the foregoing document to be served on all 

counsel via the Court’s CM/ECF system.

/s/Robert A. Schwartz 

Robert A. Schwartz

Assistant General Counsel

U.S. Commodity Futures Trading Commission

Three Lafayette Plaza

1155 21st Street N.W.

Washington, DC 20581

(202) 418-5958 

rschwartz@cftc.gov

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