Mak v. Wocom Commodities Ltd.

• Decision Date: 17 June 1997
• Docket Number: No. 96-3179,96-3179
• Citation: 112 F.3d 287
• Parties: Comm. Fut. L. Rep. P 27,036 Michael E. MAK, Plaintiff-Appellant, v. WOCOM COMMODITIES LIMITED, a Hong Kong corporation, and Wocom Limited, a Hong Kong corporation, Defendants-Appellees.
• Court: U.S. Court of Appeals — Seventh Circuit

Page 287

112 F.3d 287

Comm. Fut. L. Rep. P 27,036

Michael E. MAK, Plaintiff-Appellant, v. WOCOM COMMODITIES LIMITED, a Hong Kong corporation, and Wocom Limited, a Hong Kong corporation,

Defendants-Appellees.

No. 96-3179.

United States Court of Appeals, Seventh Circuit.

Argued Feb. 20, 1997.

Decided April 23, 1997.

Rehearing Denied June 17, 1997.

James A. McGurk (argued), Chicago, IL, Santiago A. Durango, Chicago, IL, for Plaintiff-Appellant.

David T. Pritikin, Thomas K. Cauley, Jr. (argued), Sidley & Austin, Chicago, IL, for Defendants-Appellees.

Before BAUER, WOOD, JR., and COFFEY, Circuit Judges.

HARLINGTON WOOD, JR., Circuit Judge.

This innovative case raises a question of jurisdiction over damage claims arising from allegedly fraudulent commodity and currency futures trading which occurred in Hong Kong involving an activity known as "bucketing." Plaintiff-Appellant Mak seeks relief under the Commodity Exchange Act ("CEA"), 7 U.S.C. § 1 et seq., and the common law. After a careful analysis, the district court dismissed all of Mak's federal claims and pendent state claims for lack of subject matter jurisdiction. Although Mak's counsel has argued very persuasively on behalf of jurisdiction, we are not persuaded, and therefore we affirm the district court.

Factual Background

Mak, a citizen and resident of Hong Kong, invested heavily in futures and options on futures at the Chicago Mercantile Exchange ("CME") and other United States futures exchanges. He placed his trades with the defendant commodity brokers, both of which are Hong Kong corporations and are referred to collectively as "Wocom." The problem in this case is that Mak's investments in question never left Hong Kong.

Mak alleges that Wocom "bucketed" his orders, all in Hong Kong. As the district court explained:

"Bucketing" has been defined as a "method of doing business wherein orders of customers for the purchase or sale of commodities for future delivery, instead of being executed by bona fide purchases and sales with other traders, are simply matched and offset in the soliciting firm's own office and the firm itself takes the opposite side of the customers' orders." Purdy v. Commodity Futures Trading Com'n, 968 F.2d 510, 520 (5th Cir.1992).

Defendants' bucketing, it is alleged, was accomplished in Wocom's "dealing room," to which Mak was not admitted, instead of in the "trading room" where he could have monitored his desired trades.

That bucketing is contrary to the CEA is not disputed, but it is disputed that Mak can benefit from the CEA by charging that he is the victim of foreign-based bucketing frauds. What Mak complains about under the CEA did not happen in the United States and involves people who were not in the United States. Everything regarding these particular trades happened or did not happen in Hong Kong. None of the parties or their agents have ever been located in the United States.

Analysis

The central issue here is whether the district court committed error when it dismissed plaintiff's complaint for lack of subject matter jurisdiction. If the dismissal was not in error plaintiff's other issues become moot.

Both parties at least agree that subject matter jurisdiction over international disputes concerning commodity futures transactions is to be largely evaluated according to the "conduct" and "effects" tests set out in our decision in Tamari v. Bache & Co. (Lebanon) S.A.L., 730 F.2d 1103 (7th Cir.1984). ¹ It is necessary therefore to examine Tamari.

In Tamari, the plaintiffs were citizens of Lebanon who brought suit under the CEA for damages they alleged resulted from fraud and mismanagement of their commodity futures trading account. The defendant, Bache & Co. (Lebanon) S.A.L. ("Bache Lebanon"), was a Lebanese corporation wholly owned by defendant Bache & Co., Inc., a Delaware corporation ("Bache Delaware"). The issue in Tamari was whether the CEA gave the district court subject matter jurisdiction over a dispute between nonresident alien traders regarding the trading of commodity futures. The dispute arose from contacts between the parties in Lebanon, although the transactions actually took place on United States exchanges. Relying on a number of prior cases which we need not examine again, ² Tamari analyzed jurisdiction by applying the "conduct" and "effects" tests. The conduct test "focuses on the foreigner's conduct within the United States as it relates to the alleged scheme to defraud." Tamari, 730 F.2d at 1108. On the other hand, "[u]nder the effects test courts have looked to whether the conduct occurring in foreign countries has caused foreseeable and substantial harm to interests in the United States." Id. Tamari also found the underlying intention of the CEA to be to protect the integrity of domestic markets and domestic investors from the harm of improper foreign transactions. Id. After applying both tests, Tamari concluded that the district court had subject matter jurisdiction over the dispute.

In applying the conduct and effects tests to Mak's case, therefore, we first note that Tamari also explains that the transmission of commodity futures orders to the United States from foreign parties is an essential step in the consummation of any scheme to defraud through futures trading on the United States exchanges. Id. The Tamari court concluded that when Congress passed the CEA, it intended to proscribe fraudulent commodity future transactions executed on a domestic exchange regardless of the location of the agents that facilitated the trading. Id. However, Tamari does not venture directly into the situation where the alleged fraud and the parties were all outside the United States and domestic markets were not directly involved. Consequently, it is clear that the conduct test cannot be met in the present case, as no transaction took place on a domestic exchange (in fact, none of the events of this case took place in the United States). We decline to extend Tamari to reach such situations.

Nevertheless, using the effects test, Mak sees some hope of relief under Tamari and the CEA in the factual circumstances of his case. Mak argues that foreign bucketing can directly affect United States interests the same as can improper trades actually executed on American exchanges by foreign agents, which occurred in Tamari. Mak argues that the CEA's express prohibition of bucketing as harmful requires relief in this case, even though no trades were actually placed on a domestic exchange. Bucketing, he asserts, is considered harmful because of the nature of the fraud, not because of where it occurs. Mak claims that bucketing distorts the discovery mechanism of our domestic exchanges, deprives various parties of profit, commissions and fees, reduces market liquidity and diminishes the hedging function of the exchanges. Domestic bucketing does not involve placing trades on domestic exchanges either, but it nevertheless has harmful effects. Mak argues that the same reasoning should apply to purely foreign bucketing by foreign parties without the placing of any trades on our domestic exchanges. In Smith v. Groover, 468 F.Supp. 105, 121 (N.D.Ill.1979), bucketing is seen as manipulation of the market, the same as other types of fraud actually occurring on domestic exchanges. That same harm is done to domestic exchanges, Mak claims, anytime bucketing occurs, no matter who does it, where they are or where the bucketing occurs. That reasoning is not without some appeal.

The question we therefore face is whether foreign bucketing by foreign parties of trades intended for but diverted from United States exchanges can be viewed as so directly affecting United States interests that the...