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HERMAN v. T. & S. COMMODITIES

UNITED STATES DISTRICT COURT SOUTHERN DISTRICT OF NEW YORK


September 16, 1983

DENNIS HERMAN, Plaintiff, against T. & S. COMMODITIES, INC., and ROBERT E. SHERMAN, Defendants.

The opinion of the court was delivered by: SAND

LEONARD B. SAND, U.S.D.J.

SAND, J.

 Plaintiff Dennis Herman, an investor in commodities, brings this action against T. & S. Commodities, Inc. ("T & S"), a futures commission merchant, and Robert Sherman, an officer of T & S. Plaintiff alleges that defendants have violated § 4(b) of the Commodities Exchange Act ("the Act") by engaging in unauthorized trading *fn1" with respect to Mr. Herman's account.Defendants have moved for summary judgment under Fed.R.Civ.P. 56 on the ground that plaintiff has not demonstrated that defendants acted with the level of scienter required for liability under § 4(b) of the Act. For reasons set forth below, defendant's motion is denied.

 FACTS

 The facts relevant to this motion are largely undisputed. On June 7, 1982, plaintiff, an investor in the silver futures commodities market, transferred his account to T & S. At that time, plaintiff had established a "short" position of 20 September 1982 Comex silver futures. The following day, Mr. Sherman, the plaintiff's account executive at T & S, converted his new client's account to a "long" position of 21 September 1982 futures contracts. Mr. Sherman took this action without the authorization of his client but apparently in the belief that the plaintiff would benefit from his new position. Unfortunately, Mr. Sherman's appraisal of the market proved erroneous, and plaintiff suffered a substantial loss.

 DISCUSSION

 Section 4(b) of the Commodities Exchange Act (7 U.S.C. § 6(b) (1976)) provides in relevant part as follows:

 It shall be unlawful (1) for any member of a contract market, or for any correspondent, agent, or employee of any member, in or in connection with any order to make, or the making of, any contract of sale of any commodity in interstate commerce, made, or to be made, on or subject to the rules of any contract market, for or on behalf of any other person...

 (A) to cheat or defraud or attempt to cheat or defraud such other person;

 (B) willfully to make or cause to be made to such other person nay false report or statement thereof, or willfully to enter or cause to be entered for such person any false record thereof;

 (C) willfully to deceive or attempt to deceive such other person by any means whatsoever in regard to any such order or contract or the disposition or execution of any such order or contract, or in regard to any act of agency performed with respect to such order or contract for such person; or

 (D) to bucket such order, or to fill such order by offset against the order or orders of any other person, or willfully and knowingly and without the prior consent of such person to become the buyer in respect to any selling order of such person, or become the seller in respect to any buying order of such person.

 It is undisputed that unauthorized trading by a broker is an activity that this section directly proscribes. Haltmier v. Commodity Futures Trading Commission, 554 F.2d 556, 560 (2d Cir. 1977). Cf. also 7 C.F.R. § 166.2(a) (Commodity Futures Trading Commission rule prohibiting brokers from trading without specific customer authorization). There is no requirement that the unauthorized trades be in themselves fundamentally unfair or injurious to the client's interests. Therefore, liability will attach if the broker possesses the requisite degree of culpability with respect to the act of unauthorized trading. The sole issue before us, then, is to define that level of culpability.

 Defendants urge that § 4(b) (A) *fn2" requires that the broker act with malicious intent or evil motive. In this case, they contend, defendants are shielded from liability because Mr. Sherman acted intending to benefit, rather than to harm, the plaintiff.

 Admittedly, the language of § 4(b)(A) is colorably susceptible of the interpretation defendant seeks to place on it, i.e., that one does not intend to "cheat or defraud" if one intends ultimately to benefit the "victim." The Second Circuit, however, has squarely rejected the interpretation of § 4(b) that defendants urge upon us here.

 Nor is it important that [the account executive]... may not have had an evil motive or that he did not subjectively want to cheat or defraud [the customer]. It is enough that he acted deliberately, knowing that his acts were unauthorized and contrary to instructions. Such knowing, intentional conduct made his acts wilful, and therefore his violations of the statutory prohibition against cheating or defrauding the customer were wilful, in the accepted sense for infractions of this type.

 Haltmier v. Commodity Futures Trading Commission, 554 F.2d 556, 562 (2d Cir. 1977) (emphasis supplied). Other courts have reached the same conclusion.E.g., Silverman v. Commodity Futures Trading Commission, 549 F.2d 28, 31 (7th Cir. 1977). See Gordon v. Shearson Hayden Stone, Inc., Comm. Fut. L. Rep. (CCH) P21,016 (CFTC, April 10, 1980), aff'd sub nom, Shearson Loeb Rhoades v. CFTC, 2 Comm. Fut. L. Rep. (CCH) at 20, 201 (9th Cir. 1982).

 There is no principled basis for distinguishing this case from Haltmier. *fn3" Defendants, however, argue that Haltmier was incorrectly decided because it did not incorporate the concept of "scienter" as defined by the Supreme Court in Aaron v. SEC, 446 U.S. 680, 64 L. Ed. 2d 611, 100 S. Ct. 1945 (1980) and Ernst & Ernst v. Hochfelder, 425 U.S. 185, 47 L. Ed. 2d 668, 96 S. Ct. 1375 (1976). We disagree.

 In the first place, Aaron and Hochfelder dealt with § 10(b) of the Securities Exchange Act of 1934 and § 17(a) of the Securities Act of 1933, rather than § 4(b) of the Commodities Exchange Act. *fn4" Even assuming, however, that the definition of scienter in those two cases is directly applicable to this case, we believe that standard is satisfied. *fn5"

 Hochfelder held that "intentional or knowing" misconduct, as opposed to mere negligence, was necessary to make out a violation of Rule 10b-5 in a private damage action; Aaron extended the Hochfelder standard to SEC enforcement actions under § 10(b) and to actions under § 17(a)(1). The Hochfelder and Aaron opinions therefore did not, as defendants suggest, draw a distinction between merely intentional wrongdoing and maliciously motivated conduct. Indeed, the Second Circuit has held that recklessness is sufficient to satisfy the Hochfelder scienter standard. E.g., ITT v. Cornfeld, 619 F.2d 909, 923 (2d Cir. 1980).

 Whatever Mr. Sherman's motives may have been, in the plain that he was more than reckless with respect to the unauthorized nature of the transactions he engaged in; he acted intentionally with full knowledge that he was violating the plaintiff's rights. *fn6" Since, as previously discussed, unauthorized trading is an activity directly proscribed by § 4(b), nothing more need be shown to make out a violation of this section.

 In short, the disposition of this motion is controlled by the Second Circuit's opinion in Haltmier. Nothing in Hochfelder or Aaron requires a contrary result.

 Accordingly, defendant's motion for summary judgment is denied.

 SO ORDERED.


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