COMMODITY FUTURES TRADING v. US Metals Depository, 79 Civil 1201.

CourtUnited States District Courts. 2nd Circuit. United States District Courts. 2nd Circuit. Southern District of New York
Citation468 F. Supp. 1149
Docket NumberNo. 79 Civil 1201.,79 Civil 1201.
PartiesCOMMODITY FUTURES TRADING COMMISSION, Plaintiff, v. U. S. METALS DEPOSITORY CO. a/k/a Metals Depository Corp. (a New York Corporation) and James Morse, William Rodman, Richard Keats, William Droge, Defendants.
Decision Date05 April 1979

468 F. Supp. 1149

U. S. METALS DEPOSITORY CO. a/k/a Metals Depository Corp. (a New York Corporation) and James Morse, William Rodman, Richard Keats, William Droge, Defendants.

No. 79 Civil 1201.

United States District Court, S. D. New York.

April 5, 1979.

468 F. Supp. 1150
468 F. Supp. 1151
Michael R. Koblenz, Regional Counsel, Michael S. Sackheim, Eric H. Vinson, Attys., Commodity Futures Trading Commission, New York City, for plaintiff

James B. Zane, Stan A. Teitler, New York City, for defendants Metals Depository Corp. and Richard Keats.

Elliot H. Pollack, New York City, for defendant James Morse.

Morrow D. Mushkin, Brooklyn, N. Y., for defendant William Droge.


EDWARD WEINFELD, District Judge.

Plaintiff, the Commodity Futures Trading Commission ("CFTC" or the "Commission"), a regulatory agency established under the 1974 amendments to the Commodity Exchange Act (the "Act" or the "Commodity Act") to administer and enforce various provisions of the Act,1 commenced this action for preliminary and permanent injunctive relief to restrain the defendants from engaging in practices asserted to be in violation of the Act and regulations promulgated thereunder.2

The defendant, Metals Depository Corp. ("Metals Depository" or "MDC"), a New York corporation with its principal place of

468 F. Supp. 1152
business at 880 Third Avenue in New York City, solicits and sells what it describes as contracts for "deferred delivery" of gold and silver to members of the public located throughout the United States. The individual defendants are Richard Keats, the President and chief executive officer of the company; William Rodman, MDC's Secretary-Treasurer; James Morse, the President of Quorum Communications, Inc., a marketing and sales consultant to MDC, with which it shares offices; and William Droge, a salesman and assistant sales manager for MDC. The Commission's complaint charges that since August 1978 the defendants have entered into, or aided and abetted one another and other persons in entering into, contracts which partake of the character of option transactions, in violation of the Commodity Act's prohibition of the sale of commodity options and of the antifraud regulations issued by the CFTC

In 1974, Congress, greatly concerned by pervasive fraud in the commodity option industry, broadened regulation over option transactions and vested in the Commission plenary rulemaking powers.3 The primary antifraud regulation promulgated under the CFTC's rulemaking authority is Rule 32.9:4

It shall be unlawful for any person directly or indirectly —
(a) to cheat or defraud or attempt to cheat or defraud any other person;
(b) to make or cause to be made to any other person any false report or statement thereof or cause to be entered for any person any false record thereof;
(c) to deceive or attempt to deceive any other person by any means whatsoever; in or in connection with an offer to enter into, the entry into, or the confirmation of the execution of, any commodity option transaction.

The Rule has been interpreted in pari materia with Rule 10b-5 adopted by the Securities & Exchange Commission ("SEC") under the Securities Exchange Act of 19345 and, accordingly, has been applied to assure that the highest ethical standards prevail in every facet of the commodities industry.6 A second antifraud regulation adopted by the CFTC is Rule 32.5, which requires that "prior to the entry into a commodity option transaction, each option customer or prospective option customer shall be furnished a summary disclosure statement by the person soliciting or accepting the order therefor,"7 that these disclosures clearly describe the option being offered and prominently

468 F. Supp. 1153
(in large capital letters at the beginning of the statement) inform investors of the risks of commodity investments,8 and that within twenty-four hours of the transaction the seller should furnish the customer with a written confirmation statement.9 A third provision, Rule 32.3, forbids commodity option trading by all persons except those "registered as a futures commission merchant under the Act and whose registration shall not have expired, been suspended . . . or revoked."10

The Commission determined in 1978 that these rules were not sufficient to regulate the sale of commodity options, because fraud in the industry was, as Congress had found earlier, still deeply entrenched and pervasive and posed substantial risks to the general public.11 Thus it issued Rule 32.11, which made it unlawful after June 1, 1978 "for any person to solicit or accept orders for, or to accept money, securities or property in connection with, the purchase or sale of any commodity option, or to supervise any person or persons so engaged."12 Congress, in amending the Commodity Act in 1978, confirmed the Commission's approach, codifying Rule 32.11 in section 4c(c) of the Act,13 which prohibits all trading in options except sales to persons who in their regular business buy, sell, produce, or otherwise use that commodity or sales by persons granted exemptions by the CFTC pursuant to its regulations.14 Thus, unless exempted by the Commission, the offer or sale of any commodity option is proscribed both under the 1978 amendment of the Act and Rule 32.11.

To determine whether the Commission has sustained its claim that defendants violated these legal mandates, the Court conducted a hearing which extended over six days, during which the application for a preliminary injunction was consolidated with a trial on the merits pursuant to Rule 65(a)(2) of the Federal Rules of Civil Procedure. The witnesses included alleged victims of the company's sales campaign, employees and attorneys associated with MDC, defendant Droge, and an expert in the field of commodity options, Adelaide Blitzer.15 Defendant Keats, called as a witness, exercised his constitutional right against self-incrimination and declined to answer questions material to the issues in the case. Upon a word-by-word review of trial transcripts, the Court's contemporaneous trial notes, an examination of the trial exhibits, and an evaluation of the demeanor of the witnesses, the Court is persuaded that the Commission has established its charges that

468 F. Supp. 1154
the defendants, singly and in concert with one another, violated the Act's prohibitions against trading in commodity options and the CFTC's antifraud regulations


It would be futile to contend that defendants could lawfully have engaged in commodity option transactions in the period at issue, August 1978 to the present. It is undisputed that the defendants were not properly registered with the CFTC as options dealers, and have not applied for a CFTC exemption from the Act's prohibition of option transactions.16 MDC and other defendants argue, instead, that what they sold or offered for sale was not a commodity option but was an actual sale of gold or silver for "deferred delivery." The sale was, according to defendants, simply a leverage or margin transaction whereby the buyer pays a fraction of the purchase price to entitle him to future delivery of the specific commodity presently in existence.

In support of their position, defendants point to the oral representations of MDC salesmen and officers that customers were purchasing gold or silver for deferred delivery, the "gold certificates" allegedly issued by the Overseas Credit Bank (located in Luxembourg) to buyers guaranteeing their ownership of gold, and the fact that at least twenty-four ounces of gold were actually delivered through MDC.17 They also rely on an opinion letter written to the company on January 31, 1979, by its counsel Boris Lewyckyj (the "Lewyckyj Letter"). The Letter describes the deferred delivery sale: the purchaser would pay a fee for the right to buy a certain amount of bullion for delivery 30, 90 or 180 days from the purchase date; MDC would thereupon place an order with the alleged Overseas Credit Bank to purchase gold or silver to cover each sale; and the purchaser would either accept delivery or compel MDC to repurchase the bullion within the contract period. The Letter concluded that "cash sale for deferred delivery" was a leverage contract subject to regulation by the CFTC, but "since leverage contracts are not futures contracts nor are they options the firms dealing in those transactions are exempt" from the Commission's registration requirement.18

The Court has studied these documents and the testimony of the defense witnesses, including that of Lewyckyj, together with two exhibits that indicate the nature of the transaction — MDC's "Customer Agreement for the Purchase of Cash Gold or Silver Bullion for Delivery on a Date Certain" (the "Customer Agreement") and a brochure entitled "Gold: The True Currency of the World" (the "Gold Brochure"), both of which were distributed by MDC to its customers and prospective purchasers who were being solicited. The Court is not bound by the defendants' self-serving characterizations of their so-called "deferred delivery" contracts and the transactions engaged in, if in substance they were sales of options and not sales of bullion on margin for future delivery. Any thinly disguised and clearly calculated attempt to circumvent the congressional prohibition against option transactions aimed to protect the American public must yield to reality. "To hold otherwise would be to exalt artifice above reality and to deprive the statutory provision in question of all serious purpose."19

The inquiry must begin with the definition of "options." Although neither the Act nor the Commission's regulations

468 F. Supp. 1155
define the term, courts have often differentiated between options and deferred delivery (or futures) contracts. The latter is a transferable...

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