     09-5325-ag
     Glodek v. SEC

                          UNITED STATES COURT OF APPEALS
                              FOR THE SECOND CIRCUIT

                                     SUMMARY ORDER
     RULINGS BY SUMMARY ORDER DO NOT HAVE PRECEDENTIAL EFFECT. CITATION TO A SUMMARY ORDER FILED
     ON OR AFTER JANUARY 1, 2007, IS PERMITTED AND IS GOVERNED BY FEDERAL RULE OF APPELLATE
     PROCEDURE 32.1 AND THIS COURT’S LOCAL RULE 32.1.1. WHEN CITING A SUMMARY ORDER IN A
     DOCUMENT FILED WITH THIS COURT, A PARTY MUST CITE EITHER THE FEDERAL APPENDIX OR AN
     ELECTRONIC DATABASE (WITH THE NOTATION “SUMMARY ORDER”). A PARTY CITING A SUMMARY ORDER MUST
     SERVE A COPY OF IT ON ANY PARTY NOT REPRESENTED BY COUNSEL.

 1            At a stated term of the United States Court of Appeals
 2       for the Second Circuit, held at the Daniel Patrick Moynihan
 3       United States Courthouse, 500 Pearl Street, in the City of
 4       New York, on the 25th day of March, two thousand eleven.
 5
 6       PRESENT: DENNIS JACOBS,
 7                              Chief Judge,
 8                GUIDO CALABRESI,
 9                DENNY CHIN,
10                              Circuit Judges.
11
12       - - - - - - - - - - - - - - - - - - - -X
13       KEVIN M. GLODEK,
14
15                    Petitioner,
16
17                    -v.-                                               09-5325-ag
18
19       UNITED STATES SECURITIES AND EXCHANGE
20       COMMISSION,
21
22                Respondent.
23       - - - - - - - - - - - - - - - - - - - -X
24
25       FOR PETITIONER:           David S. Richan
26                                 Baritz & Colman LLP
27                                 New York, NY
28

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 1   FOR RESPONDENT:   Allan A. Capute
 2                     (David M. Becker, Mark Cahn, and Michael
 3                     Conley, on brief)
 4                     Securities & Exchange Commission
 5                     Washington, DC
 6
 7        Petition for review of an order and opinion of the
 8   Securities and Exchange Commission.
 9
10        UPON DUE CONSIDERATION, IT IS HEREBY ORDERED, ADJUDGED
11   AND DECREED that Petitioner’s petition is DENIED.
12
13        Kevin Glodek petitions for a review of an order and
14   opinion issued by the Securities and Exchange Commission
15   (“SEC”) fining him $25,000 and suspending him for six months
16   for violating Section 10(b) of the Securities Exchange Act
17   (“SEA § 10(b)”), SEC Rule 10b-5, and Financial Industry
18   Regulatory Authority (“FINRA”) Rules 2110 and 2120. The
19   petition contests only the six-month suspension, not his
20   guilt or the fine. We assume the parties’ familiarity with
21   the underlying facts, the procedural history, and the issues
22   presented for review.
23
24        We have jurisdiction and discretion to reduce or
25   eliminate sanctions imposed by the SEC. 15 U.S.C. §
26   78y(a)(1); McCarthy v. SEC, 406 F.3d 179, 188 (2d Cir.
27   2005). However, we will only do so if we conclude that they
28   are “excessive” or do not “serve [their] intended purpose.”
29   Id. We review such sanctions for abuse of discretion,
30   which occurs only when a sanction is “palpably
31   disproportionate to the violation” or when the SEC fails “to
32   support the sanction chosen with a meaningful statement of
33   findings and conclusions, and the reasons or basis
34   therefor.” Id. (internal quotation marks omitted).
35
36        The suspension imposed by the SEC was at the lower end
37   of the range suggested by the FINRA Sanctions Guidelines for
38   non-egregious reckless misrepresentations. The SEC
39   reasonably concluded that Glodek had evinced a pattern of
40   violative conduct (making at least fourteen
41   misrepresentations over a period of six weeks), that his
42   misrepresentations involved promoting a company in which he
43   had a significant financial interest, and that he did not
44   adequately appreciate the seriousness of his conduct. As a
45   result, the sanctions imposed cannot be described as
46   “excessive” or “palpably disproportionate to the violation,”
47   id., and were firmly within the SEC’s discretion.

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 1        Likewise, the SEC’s opinion was thorough and cogent,
 2   providing findings and conclusions to support the imposed
 3   sanctions and offering reasons and analysis to support those
 4   conclusions. The opinion carefully considered the
 5   particular facts of Glodek’s case and explicitly analyzed
 6   and applied the relevant FINRA Sanctions Guidelines factors.
 7   The opinion justified the level of sanctions by the need to
 8   protect the general investing public through specific and
 9   general deterrence. The sanctions imposed were supported by
10   a “meaningful statement of findings and conclusions, and the
11   reasons or basis therefor” and were rooted in the “remedial”
12   purpose of protecting investors. Id. (internal quotation
13   marks omitted). Therefore, the SEC did not abuse its
14   discretion in imposing a six-month suspension on Glodek.
15
16        We hereby DENY Glodek’s petition for review of the
17   SEC’s order and opinion.
18
19
20                              FOR THE COURT:
21                              CATHERINE O’HAGAN WOLFE, CLERK
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