NOT FOR PUBLICATION

UNITED STATES COURT OF APPEALS

FOR THE NINTH CIRCUIT

U.S. COMMODITY FUTURES TRADING 

COMMISSION, 

Plaintiff-Appellee, 

 v. 

MONEX CREDIT COMPANY; et al., 

Defendants-Appellants.

No. 21-55002 

D.C. No. 

8:17-cv-01868-JVS-DFM 

MEMORANDUM*

Appeal from the United States District Court

for the Central District of California

James V. Selna, District Judge, Presiding

Submitted July 19, 2021**

San Francisco, California

Before: TASHIMA, McKEOWN, and CHRISTEN, Circuit Judges.

Monex Credit Company, Monex Deposit Company, Newport Services 

Corporation, Louis Carabini, and Michael Carabini (collectively, “Monex”) appeal 

from the district court’s grant of a preliminary injunction sought by the United 

* This disposition is not appropriate for publication and is not precedent 

except as provided by Ninth Circuit Rule 36-3.

** The panel unanimously concludes this case is suitable for decision 

without oral argument. See Fed. R. App. P. 34(a)(2).

FILED

JUL 20 2021

MOLLY C. DWYER, CLERK

U.S. COURT OF APPEALS

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States Commodity Futures Trading Commission (“CFTC”). We have jurisdiction 

under 28 U.S.C. § 1292(a)(1), and we affirm.

Monex below advanced a preliminary injunction standard that it now 

challenges as error on appeal. Despite this change in position, the CFTC 

responded to Monex’s argument on the merits. Nonetheless, we have discretion to 

conclude that issues are waived or forfeited. See United States v. Macias, 789 F.3d 

1011, 1017 n.3 (9th Cir. 2015); United States v. Depue, 912 F.3d 1227, 1232 (9th

Cir. 2019) (en banc). We ordered supplemental briefing on the issue and conclude 

that Monex forfeited the argument it raised on appeal, such that we decline to 

review Monex’s challenge to the applicable legal standard. See also Grocery 

Outlet Inc. v. Albertson’s Inc., 497 F.3d 949, 951 (9th Cir. 2007) (per curiam).

Monex asserts that the record establishes that its practices satisfy the “actual 

delivery” exception. The district court considered the evidence and arguments 

Monex presses on appeal, and the court’s factual findings were consistent with that 

evidence and not clearly erroneous, so we uphold its conclusion. See All. for the 

Wild Rockies v. Cottrell, 632 F.3d 1127, 1131 (9th Cir. 2011).

Monex also argues that the CFTC did not provide fair notice about how 

Monex could comply with the statute. But United States v. AMC Entertainment, 

Inc., 549 F.3d 760, 769–70 (9th Cir. 2008), is inapposite because the court in that 

case modified an injunction that remedied conduct occurring prior to when the 

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defendant had fair notice of regulatory requirements. This preliminary injunction 

ensures prospective compliance with the law.

Monex finally contends that the preliminary injunction is overbroad. Given 

the district court’s factual findings and its conclusion that Monex’s leveraged Atlas 

transactions are likely unlawful, the court did not abuse its discretion in tailoring 

the preliminary injunction as it did.

AFFIRMED.

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