Birkelbach v. Securities & Exchange Commission

In the
United States Court of Appeals
For the Seventh Circuit
No. 13-2896
CARL M. BIRKELBACH,
Petitioner,
v.
SECURITIES AND EXCHANGE
COMMISSION,
Respondent.
Petition for Review of an Order of the Securities and Exchange
Commission.
No. 3-14609
ARGUED APRIL 1, 2014 — DECIDED MAY 2, 2014
Before TINDER and HAMILTON, Circuit Judges, and KAPALA,
District Judge.*
KAPALA, District Judge. Carl Birkelbach seeks review of a
Securities and Exchange Commission (“SEC”) order barring
him for life from participation in the securities industry. In his
*
The Honorable Frederick J. Kapala of the United States District Court for
the Northern District of Illinois, sitting by designation.
2 No. 13-2896
petition, Birkelbach contends that the SEC’s order was
erroneous because the original disciplinary complaint was
untimely and the lifetime bar was an excessive punishment.
For the following reasons, we deny the petition.
I. BACKGROUND
A. The SEC’s Regulatory Structure
“The SEC is the federal agency charged with the regulation
of the securities industry, and, because the SEC lacks the
resources to police the entire industry, it relies on industry
members to promote compliance with the securities laws and
regulations and to pursue enforcement actions.” Gold v. S.E.C.,
48 F.3d 987, 990 (7th Cir. 1995). The Financial Industry
Regulatory Authority, Inc. (“FINRA”) is a not-for-profit self-
regulatory organization formed under the Securities Exchange
Act of 1934, 15 U.S.C. § 78o-3, which was created in 2007
following the consolidation of the National Association of
Securities Dealers, Inc. (“NASD”) and portions of the New
York Stock Exchange Regulations, Inc.1 See William J. Murphy,
Exchange Act Release No. 69923, 2013 WL 3327752, at *1 n.1
(July 2, 2013). FINRA is empowered to bring disciplinary
actions and impose sanctions to enforce its members’
compliance with federal securities laws, SEC regulations, and
1
At the outset of the investigation in this case, FINRA was not yet in
existence and the NASD rules applied. For ease of understanding, and
because there is no meaningful distinction between the entities or rules as
they apply in this case, we will simply refer to FINRA and its predecessor
as “FINRA.”
No. 13-2896 3
FINRA’s own rules and regulations.2 See Otto v. S.E.C., 253 F.3d
960, 964 (7th Cir. 2001). A member can appeal the disposition
of a FINRA disciplinary proceeding to the SEC, which
performs a de novo review of the record and issues a decision
of its own. See id. From there, an aggrieved individual can
petition this Court for review of the SEC’s order.
B. Factual Background
The facts are drawn from the SEC’s factual findings, which
Birkelbach does not challenge. In 1983, Birkelbach founded
Birkelbach Investment Securities (“BIS”) and served as its
president. Birkelbach was registered in several capacities as a
general securities representative and principal, a municipal
securities representative and principal, an options principal,
and a financial and operations principal.3 In 1995, William J.
2
The SEC must approve FINRA's rules which, once adopted by the SEC,
have the force of law. See McDaniel v. Wells Fargo Invs., LLC, 717 F.3d 668,
673 (9th Cir. 2013). The SEC also retains the authority to "abrogate, add to,
and delete from all FINRA rules as it deems necessary." Aslin v. Fin. Indust.
Regulatory Auth., Inc., 704 F.3d 475, 476 (7th Cir. 2013).
3
FINRA’s rules, which incorporate some of the older NASD rules, define
principals as “[p]ersons associated with a member [firm] … who are
actively engaged in the management of the member’s investment banking
or securities business, including supervision, solicitation, conduct of
business or the training of persons associated with a member for any of
these functions.” NASD Rule 1021(b). By contrast, the rules define
representatives as “[p]ersons associated with a member [firm], including
assistant officers other than principals, who are engaged in the investment
banking or securities business for the member including the functions of
supervision, solicitation or conduct of business in securities or who are
(continued...)
4 No. 13-2896
Murphy became associated with BIS. The facts pertinent to
Birkelbach’s petition revolve around Murphy’s actions on two
BIS accounts—the accounts of Amy Lowry and Benjamin
Martinelli—and Birkelbach’s supervision of those actions.
1. The Lowry Account
In October 2001, Lowry, an unsophisticated investor,
opened an account with Pat Jage at BIS. The account was
funded with shares of Procter and Gamble (“P&G”) stock
which she received from her father valued at approximately
$1.5 million. The account opening documents noted that her
goals were “income,” “long-term growth,” and “income &
appreciation.” She set out her willingness for risk exposure as
“moderate.” However, due to an emotional attachment, Lowry
did not want to sell the P&G stock. Accordingly, Lowry
approved her account for “covered writing.”4 This approval
was reviewed and signed by Birkelbach. Jage managed the
account utilizing a covered writing strategy until he left in July
2002. At the time of Jage’s departure, the account was valued
at approximately $1.7 million.
Following Jage’s departure, Birkelbach transferred Lowry’s
account to Murphy, who controlled the account from July 2002
3
(...continued)
engaged in the training of persons associated with a member for any of
these functions.” NASD Rule 1031(b).
4
Covered writing is a relatively conservative investment strategy which
involves “the purchase of stock and simultaneous sale of options based on
that stock.” Shad v. Dean Witter Reynolds, Inc., 799 F.2d 525, 526 (9th Cir.
1986).
No. 13-2896 5
to February 2006. Almost immediately upon transfer, the
trading activity in the account increased dramatically. Indeed,
during the period between November 2004 and January 2006,
Murphy traded between 4,000 and 8,000 option contracts a
month on the account. Murphy also engaged in “round-trip”
trading, which is the practice of selling and then buying back
the same options contract for nearly the same price in order to
generate additional transactions and fees without generating
any profit.5 In total, Murphy generated over a million dollars
in commissions from the Lowry account, and rapidly incurred
substantial losses and a large margin debt balance.
In addition to increasing the activity in the account,
Murphy also engaged in many transactions that were not part
of the covered writing strategy authorized by Lowry. Despite
the fact that Murphy spoke with Lowry on at least a monthly
basis, he never informed her that he was pursuing trades
outside of the covered writing strategy. Murphy’s misconduct
was facilitated by Lowry’s inability to understand her monthly
statements, many of which included inconsistencies and errors
which overvalued the profitability of the account. Murphy’s
commissions from the Lowry account alone made up a
stunning 18% of BIS’s total revenues during the time Murphy
controlled the account.
5
“Round-trip” trading is one form of churning. “The term ‘churning,’ in
the context of securities regulation, denotes a course of excessive trading
through which a broker advances his own interest (e.g., commissions based
on volume) over those of his customer.” Costello v. Oppenheimer & Co., 711
F.2d 1361, 1367 (7th Cir. 1983).
6 No. 13-2896
Birkelbach supervised Murphy’s activity in the account
until Lowry closed it in early 2006. He was required to approve
all options trades. He also reviewed all trading activity daily,
ostensibly to ensure it was prudent and within the parameters
of Lowry’s investment strategy. In addition, he reviewed the
profit and loss reports and account correspondence. George
Langlois, who served as BIS’s compliance officer during the
time Murphy managed the Lowry account, frequently raised
issues with Birkelbach concerning Murphy’s trading activity in
the account. Birkelbach permitted Langlois to send activity
letters to Lowry, showing that there was a “high level of
activity” in her account. However, Birkelbach never followed
up with Lowry to check on her authorization of Murphy’s
activities and never disapproved of any of the trades made by
Murphy in her account.
Birkelbach also knew that Murphy had been previously
censured, suspended, and fined by the Chicago Board Options
Exchange, Inc., for trading without prior client authorization.
Furthermore, Birkelbach was aware that Murphy had a history
of customer complaints and arbitrations to resolve those
complaints. Birkelbach himself also had a previous disciplinary
history. He was sanctioned in 1999 by the Illinois Securities
Department with a six-month suspension and ordered to make
restitution for unauthorized trading, unsuitable transactions,
churning accounts, and excessive trading (the same things
Murphy did in the instant matter). In November 2005, FINRA
requested that Birkelbach place Murphy on heightened
supervision based on its investigation into Murphy’s behavior
on the Lowry account, but Birkelbach did not do so.
No. 13-2896 7
2. The Martinelli Account
In 1999, Martinelli, while a college student, opened an
account at BIS with Langlois managing the account. Under
Langlois’ management, the account grew from the initial
deposit value of $2,500 to over $18,000. Birkelbach transferred
the account to Murphy in 2007 when Langlois left BIS. At that
time in 2007, Martinelli was a member of the United States
military stationed in Germany. Martinelli and Murphy
discussed changing the strategy Langlois had used to handle
the account, and, although Martinelli responded positively to
the prospect, he requested some time to consider Murphy’s
suggestions.
Despite that request, and without written authorization,
Murphy began actively trading in Martinelli’s account
immediately. Because of a delay in receiving his international
mail, Martinelli’s statement for April 2007, which was the first
month Murphy had control over his account, was not received
until late May or early June. Murphy’s unapproved trading
had resulted in a 17% drop in the account’s value in that single
month. Martinelli contacted Murphy, who blamed the issue on
a misunderstanding of his authority. Murphy also said that
another month of trading had resulted in additional losses and
the account was now only worth approximately $13,000.
Murphy offered to refund $3,000 in commissions. Martinelli
directed Murphy to stop trading on his account and to transfer
it to Langlois at his new firm.
In reality, the value of the account had plummeted to just
over $10,000, a drop in value of approximately 45% in only two
8 No. 13-2896
months. In July 2007, after he received the May statement,
Martinelli called both Murphy and Birkelbach to complain. He
also forwarded a complaint to FINRA.
Birkelbach’s supervisory responsibilities were the same as
with the Lowry account. However, at the time Birkelbach
assigned Martinelli’s account to Murphy, he was aware of the
FINRA investigation into the Lowry account and had already
received the request to place Murphy under close supervision.
Despite knowing Murphy’s past habits of acting without
authorization, and knowing that Murphy was continuing to do
so with Martinelli’s account, Birkelbach never disapproved of
any of Murphy’s trades.
C. Procedural Background
In November 2005, after a routine examination of BIS’s
trading in the Lowry account, FINRA launched a formal
investigation. On July 30, 2008, FINRA’s Department of
Enforcement (“DOE”) filed a nine-cause complaint against
Murphy, Birkelbach, and BIS. A FINRA hearing panel held a
four-day hearing and determined there were violations on
seven of the causes charged, including the single cause against
Birkelbach individually which alleged that he failed to
adequately supervise Murphy in violation of NASD Rules
3010(a) and 2860(b)(20). Rule 3010(a) requires a member firm
to “establish and maintain a system to supervise the activities
of each registered representative … that is reasonably designed
to achieve compliance” with applicable laws, regulations, and
rules. Rule 2860(b)(20) requires “diligent supervision of all
customer accounts” and specifies that the ultimate duty to
supervise accounts falls to the member’s senior options
No. 13-2896 9
principal. As a result of their findings, the hearing panel barred
Murphy from associating with any member firms for life and
ordered him to pay nearly $600,000 in disgorgement. The panel
suspended Birkelbach for six months in two of his
capacities—as a general securities principal and an options
principal—and fined him $25,000. The panel also fined BIS
$2,500.
Murphy, Birkelbach, and BIS appealed that ruling to
FINRA’s National Adjudicatory Council (“NAC”), which
provides an independent review of the case. The NAC affirmed
the finding of all seven violations. It also affirmed the
punishments against Murphy and BIS, except that it ordered
the disgorgement penalty against Murphy to be lowered
slightly. Of import to this case, it found that the hearing panel’s
sanction against Birkelbach was “wholly insufficient to remedy
his failure to supervise” and that his “conduct reflect[ed] a
shocking disregard for FINRA rules.” William J. Murphy,
Complaint No. 2005003610701, 2011 WL 5056463, at *35, *37
(FINRA Oct. 20, 2011). Accordingly, the NAC increased the
sanction against Birkelbach to include a lifetime bar from
association with any member firm in any capacity.
From there, Murphy and Birkelbach appealed to the SEC.
The SEC engaged in a de novo review of the original record and
made its own findings. In particular, it found that Murphy had
engaged in trading without authorization, churning the
accounts for fees, making unsuitable recommendations to
Lowry, excessive trading, and providing misleading
communications to Lowry. Accordingly, the SEC affirmed the
sanctions against Murphy. Additionally, the SEC found that
Birkelbach violated several relevant rules which establish his
10 No. 13-2896
duty to maintain reasonable supervision of Murphy, including
failing to investigate the many red flags raised throughout
Murphy’s handling of both accounts. It went on to hold that
“Birkelbach’s supervisory failures [we]re egregious and that a
bar in all capacities is an appropriate sanction, one necessary to
protect the investing public from further harm.” William J.
Murphy, 2013 WL 3327752, at *27. Thus, the lifetime bar in all
capacities was affirmed.
Now Birkelbach petitions this Court for review of the SEC’s
ruling. Birkelbach does not take issue with the finding that
Murphy violated assorted duties to Lowry and Martinelli or
the finding that Birkelbach violated his supervisory duties by
failing to reasonably supervise Murphy. Instead, he argues that
(1) the July 30, 2008 complaint was untimely because it was
filed more than five years after Birkelbach began supervising
agents who managed Lowry’s account, and (2) the lifetime bar
was excessive.
II. ANALYSIS
Our review of SEC decisions is limited. We may only
overturn a SEC disciplinary order if it “is unwarranted in law
or without justification in fact.” Otto, 253 F.3d at 964. Any
finding of fact by the SEC is binding on this Court “if
supported by substantial evidence,” which means that the
finding need only be supported by evidence sufficient to
support a reasonable factfinder’s decision. Monetta Fin. Servs.,
Inc. v. S.E.C., 390 F.3d 952, 955 (2004). Furthermore, we will
only disturb the SEC’s choice of a particular sanction if the
choice was an abuse of discretion. Otto, 253 F.3d at 964.
No. 13-2896 11
A. Statute of Limitations
Birkelbach first argues that the five-year statute of
limitations set out at 28 U.S.C. § 2462 bars the disciplinary
action in its entirety. Section 2462 provides that “an action, suit
or proceeding for the enforcement of any civil fine, penalty, or
forfeiture, pecuniary or otherwise, shall not be entertained
unless commenced within five years from the date when the
claim first accrued … .” The disciplinary complaint was issued
by FINRA on July 30, 2008, and Murphy began handling the
Lowry account in July 2002. Thus, Birkelbach argues, the
complaint was beyond the statute of limitations.6
The SEC rejected the statute-of-limitations challenge on two
grounds. Initially, the SEC opined that § 2462, which typically
only applies to government agencies, does not apply to
FINRA, which is a private self-regulatory organization, and,
therefore, is not a government entity. In an alternative holding,
the SEC found that even if § 2462 applied, “it would not bar
FINRA’s action here because the vast majority of the violative
6
Other than in a footnote in the reply brief, Birkelbach ignores the
Martinelli account entirely in his statute-of-limitations argument. This is a
curious omission, as the entirety of the failure to supervise Murphy’s
control of Martinelli’s account fell within the five years prior to the DOE’s
complaint. At oral argument, Birkelbach’s attorney conceded that the
Martinelli account activity happened entirely within the statute of
limitations, but described the devaluation of Martinelli’s account by nearly
50% through unauthorized trading and churning as “de minimis.” In any
event, because we reject the statute-of-limitations argument as it applies to
the Lowry account, we need not determine if the Martinelli account
misbehavior by itself could justify the lifetime bar imposed.
12 No. 13-2896
conduct in this case occurred within five years of FINRA’s
filing its complaint, and all of the violations culminated within
that period.” William J. Murphy, 2013 WL 3327752, at *23.
However, Birkelbach argues that failure to supervise
Murphy was a single indivisible act which accrued on the day
of the first failure to supervise and the fact that it continued
thereafter is irrelevant for purposes of the statute of
limitations.7 The SEC, however, rejected that view in its
alternative holding, concluding that an ongoing series of
violations of the duty to reasonably supervise Murphy is
continuing and divisible such that it could consider the timely
violative conduct, even if there was additional untimely
violative conduct. Specifically, the SEC was willing to look at
“conduct by Applicants sufficient to sustain each of the
violations under review [which] continued until well after July
30, 2003—the date five years before FINRA issued its
complaint,” William J. Murphy, 2013 WL 3327752, at *23,
thereby rejecting the idea that a failure to supervise is an
indivisible act. The SEC’s interpretation of the continuing duty
to supervise is correct.
7
In his reply brief, Birkelbach also addresses—and argues against—the
applicability of the continuing-violations doctrine. This doctrine, if
applicable, would permit the SEC to consider untimely violative conduct
so long as there was some timely violative conduct and the conduct as a
whole can be considered as a single course of conduct. See Haugerud v.
Amery Sch. Dist., 259 F.3d 678, 690 (7th Cir. 2001). We need not address
whether this doctrine applies here as the SEC found in its alternative
holding that the timely conduct alone was sufficient to justify finding all of
the violations of Birkelbach’s supervisory duties.
No. 13-2896 13
Indeed, if we were to accept Birkelbach’s
interpretation—that failure to supervise is a single indivisible
act which begins on the first day of unethical supervision—the
result would be absurd. Under his interpretation, if an
unethical supervisor were to avoid detection for five years, he
could continue his unethical behavior forever without FINRA
or the SEC being able to discipline him. See Chowdhurry v.
Ashcroft, 241 F.3d 848, 853 (7th Cir. 2001) (“Regulations are
created to provide guidance and uniformity to an agency’s
decision-making. Those regulations, however, should not be so
strictly interpreted as to provide unreasonable, unfair, and
absurd results.”). The rules contemplate a continuing duty to
reasonably supervise, and any violative conduct that falls
within the statute of limitations is independently sanctionable,
regardless of whether there was additional violative conduct
which occurred before that time.
At oral argument, Birkelbach conceded that there was
sufficient violative conduct during the five years immediately
proceeding the DOE’s filing of its complaint to support the
SEC’s findings that he violated his supervisory duties, and thus
we have no trouble agreeing with the SEC’s resolution of the
timeliness challenge. Because we agree with the SEC that the
disciplinary action was timely even if the five-year limit set out
in § 2462 applies, we need not address § 2462’s applicability.
Accordingly, we reject Birkelbach’s argument that the DOE’s
complaint was untimely.
B. The Sanction
Birkelbach next argues that the SEC abused its discretion
when it affirmed the sanction of a lifetime bar against him, as
14 No. 13-2896
it barred him in all capacities even though the disciplinary
action was only against him in a supervisory capacity.
Therefore, he first argues, the punishment was not tailored to
the offense. Secondly, he argues that the SEC acted erroneously
in affirming the NAC’s decision to increase the sanction to a
lifetime bar in all capacities.
“[T]he fashioning of an appropriate and reasonable remedy
is for the [SEC], not this court, and the [SEC’s] choice of a
sanction may be overturned only if it is found unwarranted in
law or without justification in fact.” Monetta, 390 F.3d at 957(alterations and quotation marks omitted). In other words, we
will only disturb a sanction where we can find an abuse of the
SEC’s discretion. Id. In assessing the appropriateness of the
sanction, the SEC often considers “the egregiousness of a
respondent’s actions, the isolated or recurrent nature of the
violation, the degree of scienter, the sincerity of a respondent’s
assurances against future violations, the respondent’s
recognition that the conduct was wrongful, and the likelihood
of recurring violations.” Id. (quotation marks omitted).
Birkelbach’s first contention is without merit. His argument
that the SEC erred by failing to tailor his punishment to his
conduct has two aspects, both a length and breadth challenge.
Specifically, he argues that the SEC erred by imposing a
lifetime bar, rather than a shorter suspension, and that it erred
when it imposed sanctions against him related to capacities
which were not relevant to his immediate conduct. This
distinction is largely academic, though, as our analysis as to
why the SEC did not err is the same for both aspects. While
various SEC and FINRA opinions have suggested that
typically the punishment should be tailored to the conduct in
No. 13-2896 15
question, the sanction guidelines for the rules in question
contemplate that a lifetime bar “in any or all capacities” is an
available sanction where the conduct is serious enough.
FINRA, Sanction Guidelines, 11, 103 (2013); NASD, Sanction
Guidelines, 11, 108 (2006) (retired). In its analysis, the SEC
found that Birkelbach’s conduct was sufficiently egregious to
justify the lifetime bar in all capacities, noting Birkelbach’s
previous censure and suspension for very similar behavior to
Murphy’s; the long period of time that Birkelbach knowingly
failed to address Murphy’s many ethical violations; the fact
that Birkelbach assigned Murphy to the Martinelli account
despite knowing of FINRA’s investigation into the Lowry
account and permitted him to aggressively churn the account;
his utter failure to take reasonable supervisory steps in light of
the many red flags raised by Langlois, FINRA’s investigation,
and FINRA’s request to place Murphy under close supervision;
the significant harm caused to the customers on account of his
inadequate supervision; and his habit of blaming others,
including the clients from whom he and Murphy essentially
stole, for his supervisory failures. We conclude that this was a
meaningful review of Birkelbach’s conduct, supported by the
unrebutted facts of the case, and grounded in the law. In this
light, we cannot say that the SEC abused its discretion in
finding that this case was sufficiently egregious to impose a
lifetime bar in all capacities. See McCarthy v. S.E.C., 406 F.3d
179, 188 (2d Cir. 2005) (“Typically, such an abuse of discretion
will involve either a sanction palpably disproportionate to the
violation or a failure to support the sanction chosen with a
meaningful statement of findings and conclusions, and the
reasons or basis therefor, on all the material issues of fact, law,
16 No. 13-2896
or discretion presented on the record.” (quotation marks
omitted)).
Birkelbach does not directly address the SEC’s reasoning,
but rather he cites several cases in which FINRA imposed
something less than a lifetime bar in all capacities for a failure
to supervise. The SEC discussed those cases in its order,
however, and found that they involved sufficiently different
circumstances, such as a shorter period of inadequate
supervision or other mitigating factors, to justify the difference
in punishment. Birkelbach has not addressed the distinctions
drawn by the SEC, and we agree with the SEC that those cases
are sufficiently distinguishable. As such, the cited cases do not
dictate a different result in this case. In any event, “[t]he
employment of a sanction within the authority of an
administrative agency is … not rendered invalid in a particular
case because it is more severe than sanctions imposed in other
cases.” Butz v. Glover Livestock Comm’n Co., 411 U.S. 182, 187
(1973).
That leaves Birkelbach’s second sanctions argument,
namely that the SEC abused its discretion in affirming the
NAC’s decision to increase the sanction to a lifetime bar in all
capacities. Basically, Birkelbach asserts that the NAC
“punished [him] for exercising his right to … appeal a
wrongful decision” from the hearing panel. (Appellee Reply
Br. 14.) However, Birkelbach does not cite a rule, statute,
constitutional provision, court case, or anything else which
suggests that the SEC lacked the authority to affirm the
increase of his sanction on appeal. As the SEC pointed out in its
opinion, the NAC performs a de novo review of the entire
record and may even take new evidence in certain
No. 13-2896 17
circumstances. See FINRA Rule 9346; see also NASD Rule 9346
(retired). The FINRA rules specifically put those considering an
appeal on notice that the NAC “may affirm, dismiss, modify,
or reverse with respect to each finding, or remand the
disciplinary proceeding with instructions.” FINRA Rule 9348;
see also NASD Rule 9348 (retired). Indeed, the rule goes on to
state that the NAC “may affirm, modify, reverse, increase, or
reduce any sanction, or impose any other fitting sanction.”
FINRA Rule 9348 (emphasis added); see also NASD Rule 9348
(retired). Birkelbach was certainly on notice that he risked an
increase of his sanction should he take an appeal to that body.
Finally, the SEC noted in its opinion that Birkelbach
acknowledged to the NAC that it could increase his sanction,
and thus his argument that he was “somehow blindsided by
the increase rings hollow,” William J. Murphy, 2013 WL
3327752, at *28 n.164, which he does not deny or rebut in his
petition to this Court. Accordingly, we conclude that the SEC
did not abuse its discretion in affirming the NAC’s decision to
increase the sanction from a suspension to a lifetime bar in all
capacities.
We note a lingering issue which we shall touch upon
briefly. In dealing with the statute-of-limitations question
discussed supra, the SEC held that sufficient violative conduct
occurred within the five-year statute-of-limitations period to
sustain Birkelbach’s violations. However, it appears from some
of the language in the SEC’s opinion that when it was consider-
ing the sanction against Birkelbach, it may have considered
violative conduct outside the five-year time frame. For exam-
ple, in considering whether a lifetime bar was an appropriate
sanction, the SEC noted that Birkelbach “had an economic
18 No. 13-2896
incentive to permit Murphy’s churning” because the commis-
sions on the Lowry account “represented 18% of BIS’s total
revenue from the third quarter of 2002 through the end of 2005.”
Id. at *27 (emphasis added).
Monetta presumes that the SEC may consider pertinent
conduct occurring both before and after the relevant violative
period to craft its sanction. See 390 F.3d at 957 (considering
both the isolated or recurrent nature of violations and the
possibility of future violations). Accordingly, even assuming
the five-year period applies, there was no error in the SEC
considering events outside that period in crafting its sanction.
III. CONCLUSION
For the foregoing reasons, Birkelbach’s petition for review
of the SEC’s order imposing a lifetime bar in all capacities is
DENIED.