UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
LANCE A. JOHNSON,
CFTC Docket No. 98-R197
INC., INFINITY TRADING GROUP, and
CHRISTOPHER A. SMITHERS
|OPINION AND ORDER|
Complainant Lance A. Johnson
("Johnson") appeals from a Judgment Officer's decision
awarding him $5,040 plus interests and costs. Johnson contends that
the Judgment Officer failed to calculate the appropriate amount of
damages. Respondents have not responded to Johnson's appeal.
The Judgment Officer resolved the parties' dispute based largely on his positive assessment of the credibility of Johnson's testimony and negative assessment of the credibility of respondent Christopher A. Smithers's ("Smithers") testimony. He found that Smithers fraudulently induced Johnson to purchase soybean option positions and disregarded Johnson's instruction to liquidate a gasoline option position. He concluded that Smithers's conduct violated Commission Rule 33.10, and that Infinity Trading Group ("Infinity") was responsible for Smithers's wrongdoing pursuant to Section 2(a)(1)(A) of the Commodity Exchange Act. The Judgment Officer ruled that respondent Benson-Quinn Commodities, Inc. ("Benson-Quinn") was responsible for Johnson's damages based on its guarantee agreement with Infinity.
Calculation of Johnson's damages was complicated by the unusual circumstances that affected the trading in his Infinity account. Johnson transferred the gasoline position in his account from another futures commission merchant ("FCM"). The proceeds from Infinity's liquidation of Johnson's gasoline option position on May 14, 1998 amounted to $4,200. The Judgment Officer found that Infinity should have sold the gasoline position on May 1, 1998 for $9,240. When he calculated the damages due to Johnson, the judge subtracted the proceeds from the May 14 sale from the proceeds that should have been earned if the sale had taken place on May 1.
The Judgment Officer determined that
Johnson's purchase of soybean option positions was the product of
fraud, but concluded that Johnson had not been damaged because he did
not deposit any funds to pay for the soybean positions. The record,
however, shows that the proceeds from the sale of Johnson's
gasoline position were used to reduce the debit balance in
Johnson's account that resulted from the liquidation of the
soybean positions. Viewed from this perspective, Johnson actually lost
$4,200 as a consequence of Smithers's fraudulent inducement to buy
the soybean positions. The Judgment Officer erred by failing to award
this amount to Johnson.
Based on the foregoing, we modify the Judgment Officer's decision by increasing the award of damages to $9,240 plus interest and costs.
IT IS SO ORDERED.1
By the Commission (Chairman RAINER and Commissioners HOLUM, SPEARS, NEWSOME and ERICKSON).
Jean A. Webb
Secretary to the Commission
Commodity Futures Trading Commission
Dated: September 29, 2000
1 Under Sections 6(c) and 14(e) of the Commodity Exchange Act, 7 U.S.C. §§ 9 and 18(e)(1994), a party may appeal a reparation order of the Commission to the United States Court of Appeals for only the circuit in which a hearing was held; if no hearing was held, the appeal may be filed in any circuit in which the appellee is located. The statute also states that such an appeal must be filed within 15 days after notice of the order and that any appeal is not effective unless, within 30 days of the date of the Commission order, the appealing party files with the court a bond equal to double the amount of any reparation award.
A party who receives a reparation award may sue to enforce the award if payment is not made within 15 days of the date the order is served by the Proceedings Clerk. Pursuant to Section 14(d) of the Act, 7 U.S.C. § 18(d) (1994), such an action must be filed in a United States District Court. See also 17 C.F.R. § 12.407 (2000).
Pursuant to Section 14(f) of the Act, 7 U.S.C. § 18(f) (1994), a party against whom a reparation award has been made must provide to the Commission, within 15 days of the expiration of the period for compliance with the award, satisfactory evidence that (1) an appeal has been taken to the United States Court of Appeals pursuant to Sections 6(c) and 14(e) of the Act, or (2) payment has been made of the full amount of the award (or any agreed settlement thereof). If the Commission does not receive satisfactory evidence within the appropriate period, such party shall be automatically prohibited from trading on all contract markets and its registration under the Act shall be automatically suspended. Such prohibition and suspension shall remain in effect until such party provides the Commission with satisfactory evidence that payment has been made of the full amount of the award plus interest thereon to the date of payment.