The petitioners seek review of an order of the Securities and Exchange Commission (the “Commission” or the “SEC”) sustaining the petitioners’ termination by the New York Stock Exchange (the “Exchange” or the “NYSE”) of their Exchange membership. The petitioners argue that: (1) the Exchange’s partiality required its hearing officer to recuse himself from the disciplinary proceedings that resulted in the petitioners’ termination; (2) the partiality of the Commission similarly required the Commission to recuse itself with respect to its review of the Exchange’s order; and (3) the sanctions imposed by the Exchange were impermissible because they were disproportionately harsh.
BACKGROUND
The Petitioners and Their Relevant Conduct
In 1979, the petitioner John R. D’Alessio (“D’Alessio”) began his career as a floor broker at the Exchange. He purchased a membership on the Exchange in December 1993. He operated as an independent floor broker 1 until his suspension by the Exchange in February 1998.
By February 1996, D’Alessio had become an Exchange floor official. As such, he was responsible for answering the questions of other floor brokers about Exchange rules and their interpretation. During the period relevant to this appeal, D’Alessio was an employee of petitioner D’Alessio Securities, Inc., an Exchange member-organization (“D’Alessio Securities” or D’Alessio’s “firm”). D’Alessio was owner, president, and director of his firm, and acted as the firm’s floor broker. On February 25, 1998, the Exchange summarily suspended D’Alessio and his firm from Exchange membership and from access to Exchange services. Those suspensions set in motion the series of events that ultimately led to the present petition.
The Exchange is a self-regulatory organization (“SRO”) subject to Commission oversight pursuant to 15 U.S.C. §§ 78c, 78f, 78s.
2
With exceptions not relevant here, a federal statute and a Commission regulation make it unlawful for an SRO floor broker to trade for an account in which the broker has an interest or over which the broker exercises discretion. 15 U.S.C. § 78k(a)(1) (“Section 11(a)”);
3
17
Exchange rules also prohibit floor brokers from “crossing trades” and “trading ahead,” also called “frontrunning.” See NYSE Rule 91 (crossing trades); NYSE Rule 92 (trading ahead, frontrunning). A broker “crosses trades” when he or she fills a customer’s order by buying or selling a security from an account in which the broker has an interest. A broker “trades ahead” or “frontruns” when he or she receives a large order for a particular security from an institutional client and, before executing the larger trade, first executes trades in that security for an account in which the broker has an interest so as to anticipate and exploit the movement in price the larger trade is likely to cause. In addition, NYSE Rules 123, 410, and 440, which implement the record-keeping provisions for brokers and dealers contained in 17 C.F.R. §§ 240.17a-3 and 240.17a-4, require floor brokers to retain all of their trading orders for three years.
In 1994, the petitioners — D’Alessio and his firm — entered into a business relationship with the Oakford Corporation. They concede that until February 25, 1998, they “flipped” stocks for, and had a profit-sharing arrangement with, Oakford. Under the agreement with Oakford, D’Alessio and his firm were to receive seventy percent of net profits from Oakford trades, and were to absorb seventy percent of the account’s
Along with petitioners’ seventy percent interest in the Oakford account, D’Alessio also had discretion over trades for the account. He used this discretion to “cross trades” for Oakford’s benefit. And D’Alessio was vested with discretion to decide how many shares of a particular security he would trade for Oakford. At least once, D’Alessio changed the number of shares in an existing Oakford order without first contacting Oakford. The petitioners gave the Oakford account preferential treatment, “frontrunning” other customers for the benefit of the Oakford account.
Neither D’Alessio nor his firm complied with Commission regulations or Exchange Rules requiring brokers to maintain specified trading records. See 17 C.F.R. §§ 240.17a-3 & 240.17a-4; NYSE Rule 123, 410, & 440. Instead of keeping the records required by these detailed rules, see, e.g., NYSE Rule 410(a) (requiring Exchange members to “preserve for at least three years” all trading orders transmitted or carried to the Exchange floor),.D’Alessio kept a box at his booth on the trading floor in which he put order tickets. As he himself described it, he threw away the contents “[wjhenever the box got full.” NYSE Hearing of Mar. 28, 2000, at 128. The amount contained in the box at any one time, he said, “could have been a year’s worth, year and a halfs worth,.it could have been less.” Id. The petitioners wisely do not seek to convince us that these record-keeping practices complied with Commission regulations or NYSE Rules.
Criminal Proceedings
On February 25, 1998, federal law enforcement officials (it is difficult to determine from the record who) arrested D’Alessio on a charge of violating Section 11(a). On the same day, the Exchange summarily suspended D’Alessio and his firm from Exchange membership and access to Exchange services. The Exchange acted based upon D’Alessio’s floor brokerage activities involving Oakford.
6
Also on the same day, the Commission filed a civil action against, among others, D’Alessio and his firm.
See Oakford Corp.,
Litigation Release No. 15653,
SEC Proceedings Against the Exchange
At about the time the criminal proceedings against the Oakford-related defendants were underway, the Commission launched an investigation into trading practices on the Exchange floor. It concluded that as a result of, among other things, “improperly restrictive rule interpretations,” the Exchange had allowed independent floor brokers to disregard securities laws and Exchange rules. Letter from Lori A. Richards, Director, SEC Office of Compliance Inspections and Examinations, to Richard A. Grasso, Chairman and Chief Executive Officer, NYSE 1 (Sept. 14, 1998). On June 29, 1999, pursuant to a settlement agreement with the Exchange, the Commission issued an order concluding that the Exchange had been lax in policing trading by independent floor-brokers for trading involving accounts in which the brokers had an interest. The order instructed the Exchange to enforce the relevant rules.
NYSE,
Exchange Act Release No. 41574,
The Petitioners’ Lawsuit
On December 14,1999, D’Alessio and his firm instituted a lawsuit in the Supreme Court of New York, New York County, against the Exchange and three Exchange officials: Chairman Richard Grasso, Group Executive Vice-President for Market Surveillance Edward Kwalwasser, and Senior Vice-President for Market Surveillance Robert McSweeney. The complaint, which sought $25 million in damages, alleged state-law tort and breach-of-contract claims based on alleged misconduct by the Exchange and its officials. Drawing on the Commission’s investigation and criticism of Exchange enforcement of Section 11(a) and related regulations, as well as on Judge Rakoff s prior criticism of the Exchange’s interpretation of “discretion,”
Oakford Corp.,
The Exchange’s Charges against the Petitioners
In the meantime, on December 27, 1999, almost two weeks after D’Alessio and his firm filed their complaint in New York State Supreme Court, the Exchange formally charged them with disciplinary violations, including violations of Section 11(a), Rule 11a-1, and NYSE Rules 90(a), 95(a), and 111(a) (prohibiting floor brokers from engaging in proprietary and discretionary trading); NYSE Rule 91 (crossing trades); NYSE Rule 92 (frontrunning); and NYSE Rule 440 and Exchange Act Rules 17a-3 and 17a-4 (record-keeping requirements). The first step in the Exchange disciplinary process is a proceeding before a Hearing Panel consisting of one hearing officer employed by the Exchange and two members of the Exchange. See NYSE Const, art. IX, §§ 2, 4, available at http://www.nyse.com/pdfs/constitution.pdf (last visited Aug. 9, 2004). In petitioners’ case, the Hearing Panel Exchange members — i.e., the panel members other than the hearing officer — were floor brokers like D’Alessio; they were not Exchange employees.
The petitioners made a motion before the Hearing Panel arguing that “the NYSE and its employees must disqualify itself [sic] from this entire matter. The matter should be immediately referred to an outside arbitrator.” Letter from Dominic F. Amorosa, Atty. for Petitioners, to Rosetta L. Alter, Hearing Board Manager, NYSE 1 (Feb. 7, 2000). The petitioners argued that because their concurrent lawsuit against the NYSE was adverse to both the Exchange and its highest officers, all Exchange employees suffered from a conflict of interest with respect to the petitioners. The Exchange hearing officer — the only Exchange employee on the Hearing Panel — denied the motion and declined to recuse himself.
In an effort to establish that the kind of “profit sharing” arrangement between the petitioners and Oakford had been sanctioned by the Exchange,
9
D’Alessio and his firm sought to call Grasso, Kwalwasser, and McSweeney as witnesses. The hear
In a decision dated November 14, 2000, the panel concluded that D’Alessio and his firm had knowingly violated the law by, among other things, having an interest in the Oakford account, giving the Oakford account preferential treatment, and engaging in discretionary trading on behalf of the account. NYSE Exchange Hearing Panel Decision Nos. 00-195, 00-196, at 8 (Nov. 14, 2000). It censured both D’Alessio and his firm. Id. at 9. It barred them from “allied membership, approved person status, and from employment or association in any capacity with any member or member organization for a period of seven years.” Id. The petitioners were also “permanently barred from membership and/or employment on the Floor of the Exchange in any capacity.” Id.
Two weeks later, the petitioners appealed the panel’s decision to the NYSE Board of Directors. During the pendency of the appeal, the petitioners again insisted that “the NYSE must disqualify itself from these proceedings and the matter [must be] referred to an independent arbiter at once.” Letter from Dominic F. Amorosa, Atty. for Petitioners, to Karalene J. Gayle, Assistant General Counsel, NYSE 4 (Feb. 13, 2001). The Board declined to do so. The two management directors on the Board, one of whom was Richard Grasso, did, however, recuse themselves. 10 The Board then affirmed the decision of the Hearing Panel.
SEC Review
On April 11, 2001, the petitioners sought Commission review of the Board’s ruling pursuant to 15 U.S.C. § 78s(d)(2), (e)(1). On August 3, 2001, during the pendency of the appeal, Harvey Pitt was appointed Chairman of the Commission. Pitt, as a lawyer in private practice, had represented the Exchange in petitioners’ state-law action. On May 7, 2002, counsel for D’Alessio and his firm wrote to the Commission to inquire whether Pitt had any responsibility with respect to his appeal. Two days later, Pitt recused himself.
Six months later, Pitt resigned as SEC Chairman. But on December 13, 2002, the petitioners moved to disqualify the entire Commission based on the then-pending nomination of former Exchange Chairman William Donaldson to be Chairman of the Commission. Donaldson also eventually recused himself, so notifying the petitioners on March 27, 2003. The Commission did not, however, recuse itself as an agency with respect to the petitioners’ appeal.
On April 3, 2003, the Commission issued an order sustaining the decision of the Exchange Board affirming the ruling of the Hearing Panel. In an opinion accompanying the order, the Commission said that it was “basfing its] findings upon an independent review of the record.”
John R. D’Alessio,
Exchange Act Release No. 47627,
As for the petitioners’ claim that they were victims of selective prosecution by the Exchange and that they had received disproportionately harsh sanctions, the Commission noted that it has consistently held that the propriety of an SRO-imposed sanction is highly fact-dependent and “cannot be determined by comparison with action taken in other cases.”
Id.,
On May 6, 2003, D’Alessio and his firm filed a petition in this Court pursuant to 15 U.S.C. §§ 78y(a)(1) and 5 U.S.C. § 702 for review of the Commission’s order. They argue that the order should be vacated on the grounds that (1) the Exchange hearing officer who presided over the petitioners’ disciplinary hearing suffered from a conflict of interest with respect to the petitioners and therefore should have recused himself; (2) the SEC Commissioners were barred by their conflict of interest from hearing the case; and (3) the disciplinary sanctions imposed on D’Alessio and his
DISCUSSION
I. Standard of Review
“In reviewing the SEC’s opinion and order, we must affirm ‘[t]he findings of the Commission as to the facts, if supported by substantial evidence.’ ”
Valicenti Advisory Servs., Inc. v. SEC,
II. Alleged Conflicts of Interest
A. The Exchange
The petitioners argue that due process required that the hearing officer on the Hearing Panel that conducted their disciplinary hearings recuse himself. Because D’Alessio and his firm had previously filed suit in state court against the Exchange, the petitioners argue, all Exchange employees, including the hearing officer, were biased against the petitioners and incapable of giving them a fair hearing. 11 We conclude that the argument is ill conceived and that the Exchange was not in error in concluding that such alleged partiality on the part of the hearing officer did not render the Exchange disciplinary proceedings against D’Alessio and his firm unfair or invalid.
As we observe in
MFS Securities Corp. v. SEC,
No. 03-4882,
Under the due process clauses of the Fifth and Fourteenth Amendments, parties and the public are entitled to tribunals free of personal bias. In re Murchison,349 U.S. 133 , 136,75 S.Ct. 623 ,99 L.Ed. 942 (1955); see also Chew v. Dietrich,143 F.3d 24 , 28 n. 4 (2d Cir.) (observing that the due process clauses of the Fifth and Fourteenth Amendments create equivalent requirements for most purposes), cert. denied,525 U.S. 948 ,119 S.Ct. 373 ,142 L.Ed.2d 308 (1998). This requirement is applicable to administrative agencies such as the Commission in much the same way as it is applicable to courts. See Gibson v. Berryhill,411 U.S. 564 , 579,93 S.Ct. 1689 ,36 L.Ed.2d 488 (1973).
Id. at 617-18.
The petitioners assume, without elaboration, that such a due-process requirement applies to Exchange disciplinary proceedings. That is, however, not self evident. 12
We conclude that the hearing officer’s participation in the petitioners’ disciplinary proceeding did not render the proceeding unfair. The petitioners’ theory is that because they were concurrently suing the Exchange and senior Exchange officials, and because their allegations in that suit had the potential to embarrass the Exchange and those officials, the hearing officer was biased against the petitioners: The hearing officer would not want to incur the disfavor of his superiors by finding for parties who were directly adverse to them in litigation charging the superiors with misbehavior. We think that to be insufficient to establish bias.
We assume that if an Exchange official is the specific target of a civil lawsuit
Our conclusion in this regard is consistent with our decision in
Sloan v. NYSE,
“If disciplinary proceedings were to come to a halt whenever an exchange sought relief in a civil suit and the defendant counterclaimed, th[e] regulatory framework would be undermined.”
Id.; cf. MFS Securities,
Finally, acceptance of the petitioners’ theory would give rise to a perverse incentive for Exchange members, when fearing possible Exchange disciplinary proceedings and desiring to disqualify Exchange members in any such adjudication, to strike preemptively in the courtroom against the Exchange. We can discern no legitimate goal to be served by encouraging such litigation.
The Commission did not abuse its discretion in affirming the order of the Exchange in this regard.
B. The Commission
The petitioners further argue that even though Chairmen Pitt and Donaldson re-cused themselves from personal involvement in the petitioners’ appeal to the Commission, because Pitt had represented the Exchange in the civil lawsuit brought by the petitioners against the Commission, and because Donaldson was a former Chairman of the Exchange, the Commission as an institution could not be impartial with respect to the petitioners’ appeal.
To be sure, the petitioners have raised a question of the timing of Chairman Pitt’s recusal that was not present in
MFS Securities.
They did so for the first time, however, in their reply brief. “[A]rguments raised for the first time in an appellate reply brief are not properly before the court.”
United States v. Hernandez-Fundora,
III. Sanctions
Finally, D’Alessio and his firm argue that the sanctions that the Hearing Panel imposed on them were so disproportionately severe, and so manifestly the product of selective prosecution by the Exchange, that the Commission abused its discretion in sustaining the sanctions.
Cf. Stoiber v. SEC,
D’Alessio, by becoming an Exchange member, “voluntarily submitted himself to the discipline of what is largely a self-regulating association.”
Markowski v. SEC,
In the analogous context of our review of SEC-imposed sanctions, we have refused, on due process grounds, to defer to the Commission’s imposition of sanctions where “doing so would penalize an individual who has not received fair notice of a regulatory violation.”
Upton v. SEC,
To be sure, there appears to have been some uncertainty at the Exchange during the relevant period with respect to the extent to which profit-sharing arrangements violated Section 11(a) or Exchange rules. The petitioners’ relationship with Oakford and their record-keeping violations, however, went far beyond the sharing of profits. Although Exchange guidance on the meaning of “interest in an account” may have been wanting, there could have been no question at the time of the petitioners’ relationship with Oakford that the petitioners’ trading and record-keeping practices as a whole violated Exchange rules and securities regulations. The Commission did not abuse its discretion when it concluded that
[e]ven assuming ... that the Exchange failed to disseminate a clear standard with respect to whether sharing in the profits and losses of an account makes that account a member’s own account, [D’Alessio and his firm’s] other violations' — -trading for an account over which [D’Alessio and his firm] exercised discretion, according that account preferential treatment and failing to make and preserve required records- — -fully warrant the sanctions imposed by the NYSE.
John R. D’Alessio,
Exchange Act Release No. 34-47627,
The petitioners also argue that the sanctions imposed by the Exchange were so disproportionately severe in relation to sanctions imposed in similar cases that they demonstrate that the petitioners were the target of selective prosecution by the Exchange. We have indeed shown our willingness to overturn Commission penalties that we concluded were draconian. In
Arthur Lipper,
“The allegation [was] thus not simply that penalties have differed from case to case.... [E]aeh case in securities regulation, as elsewhere, is different. Those inevitable differences and gradations in fact can best be discerned and articulated by the Commissioners whose job it is to come to these sorts of judgments.”
Id.
The allegations made by petitioners here stand in stark contrast to those made in
Lipper
or
Blinder, Robinson.
There is no suggestion of mistaken reliance on counsel or systematic bias. The petitioners allege “mere disparities,”
id.,
between the sanctions imposed in their case and those imposed in cases they assert are similar.
Perhaps gross disparities in sanctions-for similar behavior would at least suggest underlying bias.- Our examination of the sanctions imposed in similar Exchange disciplinary cases 13 that are in the record, however, does not confirm such disproportionality. The petitioners cite Hearing Panel decisions in which Exchange members and their firms were disciplined for violating Section 11(a), giving preferential treatment to an account in which they had an interest, making material misstatements to the Exchange, and failing to adhere to Exchange record-keeping requirements. See Gary John Hemmingstad, NYSE Hearing Panel Decision No. 02-151 (July 18, 2002) (imposing sanctions of censure, a three-year plenary bar, 14 and a five-year bar from the Exchange floor); AFC Partners, LLC, NYSE Hearing Panel Decision Nos. 02-12, 02-13, 02-14 (Jan. 14, 2002) (censure and $75,000 fine for the firm; censure, eighteen-month plenary suspension, and $200,000 fine for one violator; censure and six-month plenary suspension for another); Richard Kwiatkowski, NYSE Hearing Panel Decision No. 01-100 (Nov. 2, 2001) (censure, permanent bar from employment on the trading floor, and five-year plenary bar). Although the Exchange Rules and securities regulations that the members were found to have violated in those cases are largely the same as those violated by the petitioners, each of these cases involved facts dissimilar from those before the Exchange in this case. That those dissimilar facts resulted in dissimilar sanctions does not, of course, tend to establish bias or selective prosecution, nor does it show that the sanction imposed was impermissibly disproportionate. 15
The Commission did not abuse its discretion in affirming the order of the Exchange in this regard.
CONCLUSION
For the foregoing reasons, the petition for review is denied and the order of the Commission is affirmed.
Notes
. Independent floor brokers are "agents who execute orders on the exchange floor typically for other members or other brokerage firms. For their services, Independent Floor Brokers receive a negotiated commission, which typically is based on the share volume of the trade."
NYSE,
Exchange Act Release No. 41574,
. For a discussion of the NYSE’s status and structure as an SRO, see
Silver v. NYSE,
.
It shall be unlawful for any member of a national securities exchange to effect any transaction on such exchange for its own account, the account of an associated person, or an account with respect to which it or an associated person thereof exercises investment discretion ....
15 U.S.C. § 78k(a)(1).
.
No member of a national securities exchange, while on the floor of such exchange, shall initiate, directly or indirectly, any transaction in any security admitted to trading on such exchange, for any account in which such member has an interest, or for any such account with respect to which such member has discretion as to the time of execution, the choice of security to be bought or sold, the total amount of any security to be bought or sold, or whether any such transaction shall be one of purchase or sale.
17 C.F.R. § 240.11a-1(a).
. During the early 1990s, while William Donaldson was Exchange Chairman, the Exchange was aware of certain profit-sharing arrangements between brokers and customers. The Exchange was also aware of stock “flipping,'’ a related practice in which floor brokers rapidly buy and sell the same security in an effort to capture the spread between the stock’s bid and ask prices. Profits made through flipping transactions are generally shared between the broker and the customer.
See
Letter from Richard A. Grasso, Chairman and Chief Executive Officer, NYSE, to Richard Walker, Director, SEC Division of Enforcement 2-3 (Oct. 7, 1998);
see also MFS Sec. Corp. v. SEC,
No. 03-4882,
. Under NYSE Rule 475, the petitioners had the right to request a hearing with respect to the summary suspension. On August 10, 1998, the petitioners requested such a hearing. On August 21, 1998, however, they withdrew the request. In early 1999, the petitioners again requested a hearing with respect to the suspension. In the course of the Exchange Division of Enforcement’s investigation into D’Alessio's conduct, he failed to produce certain documents requested by the Exchange or to appear to testify at the time for which it was noticed. In response, an Exchange Hearing Panel censured D’Alessio and barred him from Exchange membership for one month. At this time, D’Alessio's summary suspension was apparently already in effect, so it is not clear what, if anything, this additional sanction accomplished. Ultimately, D'Alessio complied with both the Exchange requests for documents and for his testimony, permitting the Exchange hearing on the charges brought against D'Alessio to go forward on the merits.
. The Commission later moved to dismiss the civil complaint. The district court granted the motion, dismissing the action without prejudice. The Commission subsequently refiled the complaint. It settled with D’Alessio on May 2, 2001, in exchange for, inter alia, a payment by D’Alessio of $200,000.
. D’Alessio suggests that the dismissal of criminal charges "exonerated” him with respect to the Exchange’s disciplinary proceeding. Petitioners’ Br. at 37. According to D’Alessio, “[p]etitioners ... sincerely believed that when they entered into a profit sharing arrangement it was proper to do so, which good faith was accepted by the United States Attorney's Office when it dismissed the criminal case against Petitioner D'Alessio in 1999. All of this proof was denied to Petitioners by the hearing officer.” Petitioners' Reply Br. at 15. However, the United States Attorney’s Office's decision to exercise its prosecutorial discretion and drop the charge against D'Alessio has little bearing, if any, on this court’s review of the SEC's review of the Exchange's disciplinary action.
. The petitioners do not address the other Exchange Rule violations of which the Hearing Panel found them guilty, including loss sharing, "crossing trades," "frontrunning,” and failure to keep specified trading records for three years.
. The Exchange Board is comprised of two "management directors” and twenty-four "non-management directors,” twelve of whom are "public directors.” These twelve "public directors” are "non-industry” directors "representing the investing public.” See Governance of the New York Stock Exchange, Inc. 3 (2003), http://www.nyse.com/pdfs/governancewhite-paper.pdf (last visited July 23, 2004). The two management directors are the Chairman and the Chief Executive Officer ("CEO”) of the Exchange (if the CEO is not also the Chairman). See NYSE Const. art. IV, § 2, available at http://www.nyse.com/pdfs/constitution.pdf.
. Although the petitioners asserted only the alleged partiality of the hearing officer in their initial brief to us, in their reply brief they extend the bias argument to the NYSE Board as a whole, as they did in the course of the proceedings before the Board. "[A]rgu-ments raised for the first time in an appellate reply brief are not properly before the court.”
United States v. Hernandez-Fundora,
. "Because the United States Constitution regulates only the Government, not private parties, a litigant claiming that his constitutional rights have been violated must first establish that the challenged conduct constitutes 'state action.’ ”
United States v. Int'l Bhd. of Teamsters,
Moreover, "the fact that a business entity is subject to 'extensive and detailed' state regulation does not convert that organization’s actions into those of the state.”
Desiderio,
At the same time, however, "we recognize that private entities may be held to constitutional standards if their actions are ‘fairly attributable’ to the state.” Id. (citation omitted). In considering an Exchange disciplinary proceeding, such as the present one, in which the disciplinary violations alleged include violations of federal securities laws and SEC regulations, the argument that the nexus between the State and the challenged proceeding is sufficiently close that the Exchange’s behavior may be fairly attributable to the State may not be trivial. However, we need not, and do not, address this issue here.
. To the extent petitioners contend that they were somehow prejudiced by the Commission’s failure to direct that the Exchange provide them with decisions disciplining other Exchange members and their firms for similar violations of Exchange rules and securities regulations, we note that such decisions are matters of public record. Indeed, petitioners' counsel acknowledged this fact at oral argument; thus, petitioners could have obtained these materials without the Exchange’s disclosure.
. A "plenary” bar or suspension, as the Exchange Hearing Panel uses the term, appears to refer to a bar from "allied membership, approved person status, and from employment or association in any capacity with any member or member organization.”
.In the decision bearing the greatest factual similarity to D’Alessio and his firm's, Kwiatkowski, the Exchange Hearing Panel permanently barred Kwiatkowski from the Exchange floor and imposed on him a five-year plenary bar. But there were factual distinctions between the two cases. Here, the Hearing Panel found that the petitioners had received more than $450,000 of the Oakford account's net profits, compared to the slightly more than $175,000 that Kwiatkowski’s firm received. And D’Alessio was a floor official— a position of trust; Kwiatkowski, apparently, was not. Especially in light of these differences between the cases, we cannot conclude that the relatively modest difference in the sanctions imposed indicates a lack of fairness on the part of the Exchange or error on the part of the Commission in affirming the Exchange's order.