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Kornman v. Securities and Exchange Commission

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Argued October 22, 2009

Before: ROGERS, GARLAND and KAVANAUGH, Circuit Judges.

The Securities and Exchange Commission permanently barred Gary M. Kornman from association with any broker, dealer, or investment adviser pursuant to section 15(b) of the Securities and Exchange Act of 1934 and section 203(f) of the Investment Advisers Act of 1940. Kornman challenges the Commission’s decision to bar his association as an investment adviser on two principal grounds: first, there was not substantial evidence in the record to support the finding that he was an investment adviser at the time of the “alleged misconduct,” and, second, the Commission abused its discretion by giving inadequate consideration to mitigating factors and to whether lesser sanctions would serve the public interest. The court’s review of the Commission’s remedial decisions is deferential, see Horning v. SEC, 570 F.3d 337, 343 (D.C. Cir. 2009), and we deny the petition.

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