September Term 2009 SEC-3-11626 Filed On: October 5, 2009 Christopher H. Zacharias v. Securities and Exchange Commission

United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 08-1134 September Term 2009
SEC-3-11626
Filed On: October 5, 2009
Christopher H. Zacharias,
Petitioner
v.
Securities and Exchange Commission,
Respondent
------------------------------
Consolidated with 08-1136, 08-1141
BEFORE: Sentelle, Chief Judge, and Ginsburg, Henderson, Rogers, Tatel,
Garland, Brown, Griffith, and Kavanaugh, Circuit Judges, and Williams*
and Randolph, Senior Circuit Judges
O R D E R
Upon consideration of petitioner John A. Carley’s petition for rehearing en banc, which
was joined by petitioner Christopher H. Zacharias, and the absence of a request by any member
of the court for a vote, it is
ORDERED that the petition be denied.
Per Curiam
FOR THE COURT:
Mark J. Langer, Clerk
BY: /s/
Michael C. McGrail
Deputy Clerk
* A statement by Senior Circuit Judge Williams concurring in the denial of the petition for
rehearing en banc is attached.

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United States Court of Appeals
FOR THE DISTRICT OF COLUMBIA CIRCUIT
____________
No. 08-1134 September Term 2009
Page 2
WILLIAMS, Senior Circuit Judge, concurring in the denial of en banc: I write separately to
explain why, even though I dissented from the panel opinion on the computation of
disgorgement, I do not believe the case appropriate for en banc review. The primary dispute
between the majority and me was over whether petitioners had waived certain arguments and
over how our precedent should apply to particular facts. I do not understand the majority opinion
to contest (1) that the SEC is under an initial burden to show a causal relation between its
disgorgement calculation and the petitioners’ wrongdoing, or (2) that in calculating a
disgorgement order the properly estimated value of the wrongdoer’s contribution to assets sold
should be subtracted from the proceeds of the sale. See Zacharias v. SEC, 569 F.3d 458, 472
(D.C. Cir. 2009) (stating that a disgorgement order “might amount to a penalty if it was not
causally related to the wrongdoing at issue” (internal quotation marks omitted)); id. at 473
(stating that it was not the Commission’s duty “sua sponte to calculate the hypothetical value of
the options and subtract the value from petitioners’ profits”); id. at 473 n. 3 (stating that
petitioners’ argument . . . was not aimed at the Commission’s calculation of ill-gotten profits”);
compare id. at 475 (dissent) (arguing that in a case such as this the Commission should, in
computing disgorgement, deduct from the proceeds the value “that petitioners could have
legitimately and contemporaneously realized” from their options). Given apparent agreement on
the key principles, I do not believe the case justifies spending the court’s limited resources on en
banc review. See Air Line Pilots Ass’n, Int’l v. Eastern Air Lines, Inc., 863 F.2d 891, 925 (D.C.
Cir. 1989) (Ginsburg, R.B., J., concurring in denial of rehearing en banc).

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