UNITED STATES OF AMERICA
COMMODITY FUTURES TRADING COMMISSION
JOHN-EMMANUEL GARTMANN, GRANDVIEW HOLDINGS CORP., AND J. MICHAEL KING
CFTC DOCKET NO. 95-R3
Respondents John-Emmanuel Gartmann, Grandview Holdings Corp., and J. Michael King filed an appeal from the initial decision of the Administrative Law Judge ("ALJ"), in which the ALJ found that the respondents had violated various sections of the Commodity Exchange Act, 7 U.S.C. ßß 1-28 (1994) ("the Act"). In a previous order, we addressed a threshold procedural question concerning whether we had jurisdiction over the claims asserted by complainant Josef Gemeinder ("Gemeinder").
Gemeinder had neither posted the bond required of nonresident complainants to gain access to the reparations forum nor demonstrated adequately that the bond requirement did not apply to him. The record did not support the ALJís determination that Gemeinder was exempt from the bond. We granted Gemeinder 60 days to either post the required bond or submit a sufficiently supported bond waiver request. Gemeinder v. Gartmann, No. 95-R3 (CFTC Feb. 17, 1998).
Before the expiration of the 60 days, Gemeinder requested that the Commission accept a bank guaranty as an adequate substitute for a bond. Gemeinder also requested an extension of the 60-day period to allow Gemeinder to comply with the Commissionís decision in this matter.
Gemeinder, a resident of Germany, filed a complaint against respondents in October 1994. The ALJ noted that Gemeinder had not filed a nonresident bond or a bond waiver request in accordance with Commission Rule 12.13(b)(4), 17 C.F.R. ß 12.13(b)(4) (1997), and ordered him to do so. Gemeinder timely filed the waiver request, relying solely on Section 110 of the German Code of Civil Procedure, and on April 23, 1997, the ALJ granted the waiver request.
The requirement that a nonresident complainant post a bond or a sufficiently supported waiver request is a prerequisite to the Commissionís jurisdiction. Neither the Act nor the Commissionís Rules provide an alternative means to satisfy this requirement. Since Gemeinder has not submitted a waiver request addressing the bond law applicable to U.S. resident complainants in Germany, he must post a bond in double the amount claimed.
For the reasons set forth above, we deny Gemeinderís request that the Commission accept a substitute for a bond. We grant Gemeinderís request for an extension to comply with the bond requirement. Gemeinder must, within 45 days of the date of this order, post a bond in double the amount claimed in his complaint.
If no bond is posted by Gemeinder within the time allowed, the initial decision shall be vacated, and this proceeding shall be dismissed for Gemeinderís failure to comply with Section 14(c) of the Act and Commission Rule 12.13(b)(4). If Gemeinder posts the bond within the time allowed, this matter will be the subject of a further order of the Commission addressing the issues on appeal from the initial decision.
IT IS SO ORDERED.
By the Commission (Chairperson BORN and Commissioners TULL, HOLUM, and SPEARS).
Jean A. Webb
Secretary of the Commission
Commodity Futures Trading Commission
Dated: April 24, 1998