HAN Member Lends Legal Talents To Defend Free Speech

The Commodities Futures Trading Commission—the federal agency charged with protecting market participants against manipulation, abusive trade practices and fraud—may be a case study on how overreaching bureaucracies threaten individual rights. But HAN member Montgomery Kosma (LSC 96) has stepped up to defend the First Amendment rights of a Florida commodities broker victimized by the CFTC’s heavy-handed tactics.

The CFTC accused Ray Fitzgerald of civil fraud, arguing that ads for his business failed to sufficiently warn potential customers about the risky nature of futures trading, despite explicit disclaimers in the ads. A magistrate judge in Florida tossed the CFTC’s claims after an expensive two-week trial, exonerating Fitzgerald and questioning both the credibility of the government’s witnesses and the analytical underpinnings of its case, but leaving him near bankruptcy.

When the CFTC appealed the decision to the 11th Circuit, Fitzgerald could no longer afford his private attorney, so IJ connected him with Washington D.C. lawyer and HAN member Monty Kosma, who graciously took the case pro bono. Despite Monty’s first-rate work, a 2-1 panel of the 11th Circuit overturned the magistrate’s decision in an opinion that drew strong criticism from the dissenting judge for its paternalistic overtones. (Fortunately, the appellate court affirmed the lower court’s ruling of no liability for Monty’s two other clients, Chuck Kowalski and Gregg Burnett, clearing them of all charges.)

Neither Monty nor Ray are giving up the fight: Monty recently filed a motion seeking en banc review of the panel decision. Regardless of the outcome, kudos to Monty Kosma for outstanding pro bono work and the courage to take on the federal government!

Monty Kosma (LSC 96) is defending Ray Fitzgerald, a Florida commodities broker victimized by the CFTC’s heavy-handed tactics.