United States Commodity Futures Trading Commission v. Hunter Wise Commodities, LLC

Case: 13-10993 Date Filed: 04/15/2014 Page: 1 of 28

[PUBLISH]

IN THE UNITED STATES COURT OF APPEALS

FOR THE ELEVENTH CIRCUIT
________________________

No. 13-10993
________________________

D.C. Docket No. 9:12-cv-81311-DMM

UNITED STATES COMMODITY
FUTURES TRADING COMMISSION,

Plaintiff - Appellee,

versus

HUNTER WISE COMMODITIES, LLC, et al.,

Defendants,

HAROLD EDWARD MARTIN, JR.,
FRED JAGER,

Defendants - Appellants.

________________________

Appeal from the United States District Court
for the Southern District of Florida
________________________

(April 15, 2014)
 Case: 13-10993 Date Filed: 04/15/2014 Page: 2 of 28

Before MARCUS, DUBINA and WALKER, * Circuit Judges.

DUBINA, Circuit Judge:
This is an appeal from the district court’s grant of a preliminary injunction.

Amendments to the Commodity Exchange Act (“the Act”) made by the Dodd-

Frank Wall Street Reform and Consumer Protection Act of 2010 purport to expand

the enforcement authority of the Commodity Futures Trading Commission (“the

Commission”). Pub. L. No. 111-203, 124 Stat. 1376, 1732–33 (effective July 16,

2011) (“Dodd-Frank”); see also 7 U.S.C. § 2 (drawing the contours of the

Commission’s jurisdiction). Among other things, the Dodd-Frank amendments

authorize the Commission to regulate retail commodity transactions offered “on a

leveraged or margined basis, or financed by the offeror, the counterparty, or a

person acting in concert with the offeror or counterparty on a similar basis.”

Dodd-Frank § 742, 124 Stat. at 1732–33 (codified at 7 U.S.C. § 2(c)(2)(D)). This

case presents a question of first impression in this or any circuit regarding whether

that amendment actually expands the Commission’s enforcement authority. After

careful consideration of the record and, with the benefit of oral argument, we hold

that it does. Because the Commission has authority to regulate the transactions

alleged in this case and the requirements for a preliminary injunction are satisfied,

*
Honorable John Walker, Jr., United States Circuit Judge for the Second Circuit Court of
Appeals, sitting by designation.

2
 Case: 13-10993 Date Filed: 04/15/2014 Page: 3 of 28

this court affirms the district court’s grant of a preliminary injunction.

I. BACKGROUND

The Commission brought a civil enforcement action alleging that twenty

defendants violated the Act by conducting off-exchange and fraudulent retail

commodity transactions. See, e.g., 7 U.S.C. §§ 6(a), 6b (prohibiting off-exchange

and fraudulent commodity futures transactions). A number of defendants objected

that the Commission lacked statutory authority for the enforcement action; the

district court rejected their arguments, granted a preliminary injunction, and

appointed a special monitor to administer the business entities involved. Two

defendants, the sole officers and members of the commodity brokerage firm at the

center of the case, now appeal that injunction.

Appellants insist that their brokerage firm, Hunter Wise, 1 bought and sold

precious metals, which it would then sell to retail customers via a network of

dealers. But according to the Commission’s complaint and the district court’s

factual findings, Hunter Wise did not actually trade, store, or transfer any metals.

Commodity Futures Trading Comm’n v. Hunter Wise Commodities, LLC, No. 12-

81311-CIV, 2013 WL 718503, at *7 (S.D. Fla. Feb. 26, 2013) (“Hunter Wise”).

Instead, Hunter Wise managed its risk exposure from customers’ trading positions

1
Four limited liability companies comprise “Hunter Wise,” and the court uses the term to
refer to them collectively. Hunter Wise Commodities is a holding company, while Hunter Wise
Trading, Hunter Wise Credit, and Hunter Wise Services are its wholly owned subsidiaries.

3
 Case: 13-10993 Date Filed: 04/15/2014 Page: 4 of 28

not by holding a physical inventory of metals for customers but by trading

derivatives in its own margin trading accounts with precious metals trading

companies. Id.

A. The Transactions’ Participants

The first of the four categories of players in these transactions includes

Hunter Wise and its members and managers, Appellants Harold Martin and Fred

Jager. 2 Martin was responsible for Hunter Wise’s day-to-day operations as Chief

Operating Officer, while Jager served as Chief Executive Officer. Together, the

Hunter Wise entities offered market access, financing, and a technology platform

for retail precious metals dealers.

Hunter Wise engaged those dealers via the Lloyds entities, the second group

of participants. Acting together, three Lloyds entities – a holding company and

two affiliated companies – served as an intermediary to recruit the dealers to

execute retail transactions on behalf of Hunter Wise. All three Lloyds entities

share the same two members and managers, James Burbage and Frank Gaudino,

who, along with the entities they own and manage, are defendants. The registered

agent for the holding company Lloyds Commodities, LLC, is J.B. Grossman, P.A.,

a law firm that previously represented Hunter Wise and continues to represent

2
Martin and Jager initially attempted to appeal on behalf of Hunter Wise as well, but the
special monitor appointed to administer the entities as a result of the preliminary injunction
prevented that.

4
 Case: 13-10993 Date Filed: 04/15/2014 Page: 5 of 28

Appellants Martin and Jager. Grossman himself is the registered agent for Lloyds

Services, LLC. Additionally, Lloyds Credit, LLC, shares a business address with

Hunter Wise. These facts paint the picture that the relationship between Hunter

Wise and Lloyds is not an arm’s-length one. By all indications, Lloyds exists only

as a pass-through for Hunter Wise’s business with dealers.

The dealers are the third category of players and the last group of

defendants. Each is a telemarketing firm that solicited retail customers for

commodity transactions, and each made an agreement with Lloyds, whereby

Lloyds agreed to provide services to facilitate sales to retail customers. The

evidence before the district court, however, was that Lloyds provided dealers no

different or additional services from those provided by Hunter Wise. The

Commission named five dealers and their four managers as defendants.3

The fourth category of participants consists of retail customers. Dealers

solicited retail customers by telephone and internet, touting physical metals as safe

investments. While a fraction of transactions were not financed, the Commission’s

enforcement action applies only to those that were. Customers typically made a

down payment of 25% and then received a loan for the balance of the purported

3
The dealers and managers named are: CD Hopkins Financial and Hard Asset Lending
Group, both LLCs whose sole member is Chadewick Hopkins; Blackstone Metals Group, LLC,
which acquired CD Hopkins’s client accounts, and its sole member, Baris Keser; Newbridge
Alliance, Inc., and its Chief Executive Officer, John King; and United States Capital Trust, LLC,
and its sole member, David Moore.

5
 Case: 13-10993 Date Filed: 04/15/2014 Page: 6 of 28

purchase price. The credit agreement, extended to dealers for customers’ benefit,

would mature in four years. (R. 39-1 at 16, ¶ 3.1.)4 After completing a

transaction, retail customers could trade based on price movements. The values of

customers’ accounts fluctuated with the price of metals and were subject to

depletion because of fees, commission, and interest charges. None of the

transactions with retail customers occurred on a regulated commodity exchange.

B. The Enterprise and Hunter Wise’s Role

Hunter Wise provided the financing made available to retail customers and

administered the transactions. The lending arm of Hunter Wise would extend

credit to the dealer, and the dealer in turn would extend credit to the customer.

When a customer agreed to make a financed purchase, a sales agent would hold the

customer on the line while placing the order at a price determined by Hunter Wise.

Hunter Wise would enter the order in its database and approve it, at which point

the order was complete.

Moreover, Hunter Wise assisted dealers in marketing metals and managing

the transactions with retail customers. It provided training materials, including

sales pitch scripts, educational videos, and policy and procedure manuals, for

dealers’ employees. Hunter Wise gave dealers administrative support in the form

4
Document numbers in record citations refer to the document number assigned by the
electronic filing system in the district court. Similarly, and in the interest of consistency, page
numbers refer to the page numbers assigned by the electronic filing system in the district court.

6
 Case: 13-10993 Date Filed: 04/15/2014 Page: 7 of 28

of standard form contracts, bookkeeping, and account management services.

Hunter Wise also provided access to an internet-based system called “the

Portal.” There, Hunter Wise maintained account and trading records for all

dealers’ retail customers’ transactions, accessible to both retail customers and

dealers. Customers could view their accounts and transaction information,

including monthly account statements and reports. The reports appeared to be

from individual dealers, but in actuality, Hunter Wise generated them. One report,

the “Transfer of Commodity Notice,” purported to transfer precious metals into or

out of customers’ accounts but, according to the district court’s findings, did not

give the customers any right to possess or control actual metals.

Funds passed from the customer to the dealer to Lloyds and finally to Hunter

Wise with the dealers and Lloyds each taking a cut along the way. Customers

incurred fees and costs associated with trading, including a commission to dealers,

a price spread, and interest. Dealers required retail customers to maintain 15% of

their account in equity, and if the equity fell below that figure, the customer would

receive a margin call, requiring him to deposit additional funds to maintain his

trading position. Accounts were subject to a minimum margin requirement, such

that if equity dropped below 9%, open trading accounts were liquidated to protect

dealers and Hunter Wise. (R. 4-20 at 28 (retail customer account opening

explaining that dealer reserves right to demand additional collateral or liquidate all

7
 Case: 13-10993 Date Filed: 04/15/2014 Page: 8 of 28

or part of collateral “without any prior notice to the client”); R. 4-19 at 89

(deposition testimony explaining Hunter Wise’s Portal procedures for an “equity

call” and “force level”).)

This margin trading system mirrored Hunter Wise’s trading accounts with a

number of precious metals trading companies, which actually maintain physical

precious metals inventories. Hunter Wise’s account with A-Mark Precious Metals,

Inc., for example, was subject to the same sort of equity requirements as those of

retail customers using the Portal. A-Mark required a baseline equity figure of

15%, with margin call coming at 10%. (R. 4-17 at 25; see also R. 4-17 at 53

(describing Hunter Wise’s similar arrangement with another precious metals

trader, Standard Bank).)

Like its customers, Hunter Wise owned no metals unless it made full

payment. Though Hunter Wise occasionally purchased or sold physical metals, the

vast majority of its transactions were margin trades. (R. 4-17 at 24, 52.) The

district court found that the trading companies delivered no metal to Hunter Wise

such that it could make deliveries to retail customers. The trading companies

would only deliver metals to Hunter Wise if Hunter Wise paid in full, something it

never did on margin trades, and no title to physical metals passed as a result of

Hunter Wise’s margin trades with the trading companies. (R. 4-17 at 25–26, 54).

Based on this evidence, the district court found that Hunter Wise had no inventory

8
 Case: 13-10993 Date Filed: 04/15/2014 Page: 9 of 28

of metals from which it could deliver to the Portal’s retail customers.

C. Procedural History

The Commission filed this enforcement action, seeking injunctive and

equitable relief as well as statutory penalties under the Act, and immediately

moved for a preliminary injunction. Appellants and Hunter Wise, along with other

defendants, opposed the preliminary injunction and moved to dismiss on the basis

that the Commission lacked statutory authority to regulate the transactions. After a

hearing, the district court granted the motion for preliminary injunction. The

district court found that the transactions were subject to the Commission’s

enforcement authority under 7 U.S.C. § 2(c)(2)(D) because they were financed

commodity transactions made with retail customers. Further, the district court

concluded that the Commission presented a prima facie case of illegality and a

likelihood of future violations. Martin and Jager then perfected this appeal.

II. STANDARD OF REVIEW

This court reviews a trial court’s decision to grant a preliminary injunction

for abuse of discretion. Sec. & Exch. Comm’n v. ETS Payphones, Inc., 408 F.3d

727, 731 (11th Cir. 2005); see also Commodity Futures Trading Comm’n v. Walsh,

658 F.3d 194, 198 (2d Cir. 2011) (reviewing for abuse of discretion the decision to

grant a preliminary injunction in a civil enforcement action brought by the

Commission). We review the underlying findings of fact for clear error and

9
 Case: 13-10993 Date Filed: 04/15/2014 Page: 10 of 28

questions of law de novo. ETS Payphones, 408 F.3d at 731. A finding of fact is

clearly erroneous if, upon reviewing the evidence as a whole, we are “left with the

definite and firm conviction that a mistake has been committed.” Anderson v. City

of Bessemer, 470 U.S. 564, 573, 105 S. Ct. 1504, 1511 (1985) (internal quotation

marks omitted); Fed. Trade Comm’n v. AbbVie Prods. LLC, 713 F.3d 54, 69 (11th

Cir. 2013) (quoting Anderson).

III. PRELIMINARY INJUNCTION STANDARD

A court deciding whether to issue a preliminary injunction under the Act

does not employ the familiar preliminary injunction formula, which requires that a

plaintiff clearly establish a substantial likelihood of success on the merits and the

likelihood of irreparable injury, among other things. Commodity Futures Trading

Comm’n v. Muller, 570 F.2d 1296, 1300 (5th Cir. 1978).5 Rather, the standard is

lower. The Act enables district courts to issue permanent or temporary injunctions

“[u]pon a proper showing” and without bond. 7 U.S.C. § 13a-1(b). A prima facie

case of illegality is a “proper showing.” Muller, 570 F.2d at 1300. Binding

precedent in this circuit suggests, and other circuits have held, that where the

Commission seeks to enjoin future violations, it must also show a reasonable

likelihood of future violations in addition to a prima facie case of illegality. Id.

5
See Bonner v. City of Prichard, 661 F.2d 1206, 1207 (11th Cir. 1981) (en banc)
(adopting as binding precedent all of the decisions of the former Fifth Circuit handed down prior
to the close of business on September 30, 1981).

10
 Case: 13-10993 Date Filed: 04/15/2014 Page: 11 of 28

(opining that had the Commission sought an injunction of future violations, it

might be necessary to show a likelihood of future violations); Commodity Futures

Trading Comm’n v. Co Petro Mktg. Grp., 680 F.2d 573, 582 n.16 (9th Cir. 1982)

(noting the future violations requirement, as applied to a permanent injunction);

Commodity Futures Trading Comm’n v. Hunt, 591 F.2d 1211, 1220 (7th Cir. 1979)

(requiring a showing of the likelihood of future violations).

IV. DISCUSSION

Martin and Jager argue the Commission’s statutory authority, its

“jurisdiction,” does not reach the transactions at issue, but we note at the outset

that this is not a matter of the court’s jurisdiction to hear this case. The district

court had subject matter jurisdiction over the Commission’s claims pursuant to

both 28 U.S.C. § 1331, because they arise under federal law, and 7 U.S.C. § 13a-

1(a), which allows the court to grant injunctive relief for violations of the Act.

Instead, this appeal presents a question of the Commission’s authority to bring this

enforcement action. Martin and Jager’s argument is akin to a claim that there is no

cause of action for a preliminary injunction (or otherwise) under the Act and that

the Commission has therefore not stated a claim to relief.

When the Commission brought this action, it asserted its authority under §

742 of the Dodd-Frank Act, codified at 7 U.S.C. § 2(c)(2)(D). The relevant portion

of that provision reads:

11
 Case: 13-10993 Date Filed: 04/15/2014 Page: 12 of 28

(D) Retail commodity transactions

(i) Applicability

Except as provided in clause (ii), this subparagraph shall apply to any

agreement, contract, or transaction in any commodity that is –

(I) entered into with, or offered to (even if not entered into

with), a person that is not an eligible contract participant

or eligible commercial entity; and

(II) entered into, or offered (even if not entered into), on a

leveraged or margined basis, or financed by the offeror,

the counterparty, or a person acting in concert with the

offeror or counterparty on a similar basis.

7 U.S.C. § 2(c)(2)(D).

The Commission enjoys authority over covered retail commodity

transactions so long as no exception applies. See id. § 2(c)(2)(D)(ii) (listing

exceptions). Covered transactions are subject to the Act’s prohibitions on off-

exchange trading and fraud. Id. § 2(c)(2)(D)(iii); see also id. § 6(a) (prohibiting

commodity futures transactions not subject to the rules of an exchange); id. § 6b

(prohibiting fraud and misrepresentation in connection with commodity

transactions). Because the Commission enjoys statutory authority over these

transactions and has pleaded a prima facie case of illegality, the district court’s

12
 Case: 13-10993 Date Filed: 04/15/2014 Page: 13 of 28

grant of a preliminary injunction is due to be affirmed.

A. The retail transactions at issue are subject to the Commission’s jurisdiction.

The Commission enjoys authority to regulate certain retail commodity

transactions. Transactions are “retail” if they are entered with or offered to “a

person that is not an eligible contract participant or eligible commercial entity.” Id.

§ 2(c)(2)(D)(i)(I). There is no dispute that the customers who entered contracts

through Hunter Wise’s Portal are not eligible contract participants. And, as the

customers are individuals, they are not eligible commercial entities. See id. §

1a(17)–(18) (defining “eligible commercial entity” and “eligible contract

participant,” respectively). Thus, these transactions were retail.

Still, the provision does not cover all retail commodity transactions; only

those entered into or offered “on a leveraged or margined basis, or financed by the

offeror, the counterparty, or a person acting in concert with the offeror or

counterparty on a similar basis” fall within the Commission’s jurisdiction. Id. §

2(c)(2)(D)(i)(II). The Act’s definitions section does not define “leveraged” or

“margined” or otherwise explain what it means for a transaction to be entered into

or offered on a “leveraged” or “margined” basis. Id. § 1a. Nor does it explain

what it means to be “financed . . . on a similar basis,” or to what “on a similar

basis” refers. Id. The district court found that because the dealers – in cooperation

with Hunter Wise – financed the transactions, the Commission’s authority reached

13
 Case: 13-10993 Date Filed: 04/15/2014 Page: 14 of 28

the transactions. See Hunter Wise, 2013 WL 718503, at *8 (“[A]t the very least,

Hunter Wise acted in concert with those offering financed transactions.”).

Martin and Jager rely on a definition of leveraged found elsewhere in the

Act to argue these transactions differ so fundamentally from leveraged transactions

that one cannot characterize them as financed on a similar basis to margined or

leveraged transactions, or as margined or leveraged themselves. They point to 7

U.S.C. § 23, where the Act prohibits commodity transactions “under a standardized

contract commonly known to the trade as a margin account, margin contract,

leverage account, or leverage contract,” except as authorized. Id. § 23(a). Under

Commission regulations effectuating that prohibition, a leverage contract has

standardized terms and conditions and is “for the long-term (ten years or longer)

purchase . . . or sale” of a leverage commodity by a leverage customer. 17 C.F.R.

§ 31.4(w). A leverage transaction, by extension, is a deal to exchange a leverage

contract. 17 C.F.R. § 31.4(x). Martin and Jager insist the terms “leverage

account” or “leverage contract,” as used in 7 U.S.C. § 23 and defined in 17 C.F.R.

§ 31.4(w), and “contracts . . . entered into . . . on a leveraged . . . basis,” as used in

7 U.S.C. § 2, have the same meaning and durational requirement. Because

leverage contracts endure for ten years or longer while the transactions made

through Hunter Wise’s Portal mature in just four years, Martin and Jager argue that

the Portal transactions cannot be “leveraged” or financed on a basis similar to a

14
 Case: 13-10993 Date Filed: 04/15/2014 Page: 15 of 28

leveraged transaction and that 7 U.S.C. § 2(c)(2)(D) therefore cannot authorize this

action. Martin and Jager are wrong.

“As with any question of statutory interpretation, we begin by examining the

text of the statute to determine whether its meaning is clear.” Silva-Hernandez v.

U.S. Bureau of Citizenship Servs., 701 F.3d 356, 361 (11th Cir. 2012) (internal

quotation marks omitted).

First, the ordinary meanings of the terms used in § 2(c)(2)(D) do not support

Martin and Jager’s argument. When interpreting a statute and confronted with

undefined terms, we give those terms their plain and ordinary meaning “because

we assume that Congress uses words in a statute as they are commonly

understood.” Polycarpe v. E&S Landscaping Serv., Inc., 616 F.3d 1217, 1223

(11th Cir. 2010) (internal quotation marks omitted); see also Marx v. Gen. Revenue

Corp., __ U.S. ___, 133 S. Ct. 1166, 1172 (2013) (observing that when interpreting

a statute, courts “assume that the ordinary meaning of the statutory language

accurately expresses the legislative purpose” (internal quotation marks and

alterations omitted)). We therefore interpret § 2(c)(2)(D) to use the terms

“leveraged” or “margined” as those terms are commonly understood. According to

their ordinary meaning, margin and leverage are related concepts; leverage denotes

“[t]he use of credit or borrowed funds (such as buying on margin) to improve one’s

speculative ability and to increase an investment’s rate of return,” while a margin

15
 Case: 13-10993 Date Filed: 04/15/2014 Page: 16 of 28

is “[t]he amount of an investor’s equity in securities bought on credit through the

broker.” Black’s Law Dictionary 990, 1053 (9th ed. 2009). Hunter Wise defined

leverage similarly in a memorandum to its holding company’s potential investors;

it explained its operations by describing leverage as “the use of a smaller amount

of capital to do the work of a much larger amount.” (R. 4-4 at 21.) Taken

together, leveraging refers generally to the ability to control high-value amounts of

a commodity or a security with a comparatively small value of capital, known as

the margin. 6 These commonly understood meanings impose no specific durational

requirement, ten years or otherwise.

Second, there is no statutory authority for the position that the term

“leveraged” as used in § 2(c)(2)(D) “is the same language as presented” in § 23.

(Appellant’s Br. at 14.) The term of art “leverage contract” does not appear in §

2(c)(2)(D). The two statutory sections do not refer to one another, and §

2(c)(2)(D) contains no durational requirement. In light of this, the basis for

reading such a specific requirement into § 2(c)(2)(D) is tenuous, at best.

Third, adopting the interpretation Martin and Jager advance would render

§2(c)(2)(D) meaningless. While it is true that statutory language must be read in

context and with a view to its place in a larger statutory scheme, Roberts v. Sea-

6
Glossary, Commodity Future Trading Commission,
http://www.cftc.gov/ConsumerProtection/EducationCenter/CFTCGlossary/index.htm (last
visited Feb. 11, 2014).

16
 Case: 13-10993 Date Filed: 04/15/2014 Page: 17 of 28

Land Servs., Inc., __ U.S. ___, 132 S. Ct. 1350, 1357 (2012), it is similarly

canonical that courts must read a statute to give effect to all provisions and avoid

rendering any part “inoperative or superfluous, void or insignificant.” Corley v.

United States, 556 U.S. 303, 314, 129 S. Ct. 1558, 1566 (2009) (internal quotation

marks omitted). If, as Martin and Jager insist, “leveraged,” “margined,” and

“financed” all carry the durational requirement imposed on standardized contracts

in § 23, then § 2(c)(2)(D) only gives the Commission authority over what § 23

already prohibits.

While we need not defer to the agency’s interpretation because the statutory

text is unambiguous, Silva-Hernandez, 701 F.3d at 361, we note also that the

interpretation the court adopts today harmonizes with the Commission’s own

informal interpretation. The Commission understands its jurisdictional grant under

§ 2(c)(2)(D) to be “in addition to, and independent from,” § 23. Retail Commodity

Transactions Under Commodity Exchange Act, 76 Fed. Reg. 77670-02, 77671 n.7

(Dec. 14, 2011); see Skidmore v. Swift & Co., 323 U.S. 134, 140, 65 S. Ct. 161,

164 (1944) (holding that informal agency interpretations “constitute a body of

experience and informed judgment to which courts and litigants may properly

resort for guidance”).

Likewise, though we need not resort to legislative history, we note that it

also complements our interpretation and the plain meaning of the terms. See

17
 Case: 13-10993 Date Filed: 04/15/2014 Page: 18 of 28

Harris v. Garner, 216 F.3d 970, 977 (11th Cir. 2000) (considering legislative

history, though strictly unnecessary in light of the plain meaning of the statute at

issue, because it “support[ed] and complement[ed]” the statutory language’s plain

meaning). Recounting the efforts of the Committee that drafted the bill, Senator

Lincoln reported during debate that the Dodd-Frank amendments to the Act

expanded the Commission’s enforcement authority and were “intended to be both

additive and complementary to the authorities” already existing. 156 Cong. Rec.

S5920, S5924-5 (daily ed. July 15, 2010) (offering the written report “to provide

clarifying legislative history”). This harmonizes with the conclusion that §

2(c)(2)(D) adds to the Commission’s enforcement authority, rather than simply

giving the Commission authority to regulate a more narrow class of standardized

contracts prohibited elsewhere.

In light of our conclusion about § 2(c)(2)(D)’s reach, the inquiry becomes

whether the Portal transactions are leveraged, margined, or similarly financed and

therefore subject to the Commission’s authority. The Commission alleged the

transactions were, and the district court did more than accept the truth of those

allegations when it found that the Commission had enforcement authority. 7 It held

a hearing, where the Commission produced evidence that Hunter Wise itself

7
We need not reach the question of whether it is enough, to establish its enforcement
authority, for the Commission to merely allege the nature of these transactions – a question the
parties themselves do not raise.

18
 Case: 13-10993 Date Filed: 04/15/2014 Page: 19 of 28

characterized its business to include financing and providing a “‘back office’

platform for a network of Authorized Independent Dealers that transact leveraged

sales in precious metals.” (R. 4-4 at 21.) Moreover, the Commission showed that

when customers’ trading positions fell below a minimum margin requirement,

dealers would initiate a margin call and liquidate open trading positions. (R. 4-11

at 68; R. 4-20 at 28.); see also Hunter Wise, 2013 WL 718503, at *6 (making

factual findings to this effect). Review of the evidence presented at this stage does

not leave us with a definite and firm conviction that the district court erred in its

factual findings regarding the nature of the transactions, and after de novo review,

we confirm its legal conclusion that § 2(c)(2)(D) covers the transactions.

Lastly, Martin and Jager’s insistence that Hunter Wise was a wholesaler not

engaged in the retail transactions cannot save them from § 2(c)(2)(D)’s reach. The

Commission alleges Hunter Wise controlled the entire scheme with a tight fist, and

it is beyond dispute that Hunter Wise at least had its fingers – if not its hands – in

each stage of the scheme. The evidence demonstrated that Hunter Wise

administered the Portal, extended credit to retail customers through the dealers, and

finalized retail customers’ transactions. (R. 4-2 at 25–26, ¶¶ 53–59; R. 4-8 at 9; R

4-12 at 126–27; R. 64-3 at 21.) Moreover, the Commission’s jurisdiction is over

the transactions themselves. See 7 U.S.C. § 2(c)(2)(D) (providing that the

Commission’s enforcement authority “shall apply to any agreement, contract, or

19
 Case: 13-10993 Date Filed: 04/15/2014 Page: 20 of 28

transaction in any commodity” covered by the subparagraph). The court could

assume the truth of Martin and Jager’s assertions that Hunter Wise’s dealings with

Lloyd’s and the dealers were arm’s-length, dealer-to-dealer transactions, and yet

the Commission would still have authority to regulate the transactions under §

2(c)(2)(D).

B. No exception to the Commission’s jurisdiction applies.

The Dodd-Frank amendments to the Act on retail commodity transactions

also include certain exceptions to the Commission’s authority, including

exceptions for certain contracts of sale resulting in actual delivery or which create

an enforceable obligation to deliver between parties with the ability to deliver. 7

U.S.C. § 2(c)(2)(D)(ii)(III). Martin and Jager argue that these exceptions apply

and remove the transactions from the Commission’s authority. Their arguments

rest on the supposition that the retail customers using Hunter Wise’s Portal were

buying and selling actual interests in metals, not trading on margin, and that Hunter

Wise possessed or controlled metals it could deliver. The district court concluded,

as a matter of fact, that Hunter Wise had never taken delivery of any metals as a

result of its trades and had no metals to deliver in connection with these retail

commodity transactions. Hunter Wise, 2013 WL 718503, at *7. Because those

findings were not clearly erroneous, we conclude that the district court did not err

when it found that the exceptions did not apply.

20
 Case: 13-10993 Date Filed: 04/15/2014 Page: 21 of 28

1. Actual Delivery Exception

The Commission’s authority to regulate retail commodity transactions does

not extend to “a contract of sale that results in actual delivery within 28 days or

such other longer period as the Commission may determine by rule or regulation

based upon the typical commercial practice in cash or spot markets for the

commodity involved.” 7 U.S.C. § 2(c)(2)(D)(ii)(III)(aa). There is no dispute over

the delivery period; the question is whether Hunter Wise’s transactions ever

resulted “in actual delivery.”

Because the Act does not define the term “actual delivery,” 7 U.S.C. § 1a,

we again refer to the ordinary meaning of the term to interpret the statute.

Polycarpe, 616 F.3d at 1223. “Delivery” is “[t]he formal act of transferring

something”; it denotes a transfer of possession and control. Black’s Law

Dictionary 494 (9th ed. 2009). “Actual delivery” denotes “[t]he act of giving real

and immediate possession to the buyer or the buyer’s agent.” Id. “Actual” is that

which “exist[s] in fact” and is “real,” rather than constructive. Id. at 40.

Martin and Jager rely on the definition of delivery found in the Uniform

Commercial Code (the “Code”) to sustain their argument that the Portal

transactions fall under the actual delivery exception. They point to Article 2 of the

Code, which defines “delivery,” with respect to goods, to mean “the voluntary

transfer of physical possession or control.” U.C.C. § 2-103(1)(e). Martin and

21
 Case: 13-10993 Date Filed: 04/15/2014 Page: 22 of 28

Jager argue that the Transfer of Commodity Notices transmitted to retail customers

via the Portal effectuated “delivery” under the Code and “actual delivery” under §

2(c)(2)(D)(ii).

First, Martin and Jager are wrong in their belief that the Code applies.

Setting aside potential preemption problems posed by the Code’s application, only

a tortured reading would make the “typical commercial practice” phrase an implicit

reference to a method of delivery, rather than the period for delivery. The

exception refers to the typical commercial practice in a clause setting out an

alternative period in which actual delivery may take place. The exception enables

the Commission to determine an alternative deadline, longer than twenty-eight

days, for actual delivery 8 and instructs the Commission to set that period “based

upon the typical commercial practice.” 7 U.S.C. § 2(c)(2)(D)(ii)(III)(aa). By its

plain reading, the exception does not use “typical commercial practice” to refer to

the form of delivery, electronic versus physical or otherwise.

Second, Martin and Jager’s urging that we graft the Code’s definition of

“delivery” onto the exception ignores the modifier preceding that term in the

exception: Delivery must be actual. The sequence of events contemplated by

Martin and Jager – in which the electronic transfer of documents indicating control

or possession effectuates delivery without physical transfer of the commodity – is

8
The Commission has yet to adopt regulations permitting a longer actual delivery period.

22
 Case: 13-10993 Date Filed: 04/15/2014 Page: 23 of 28

by any definition constructive, rather than actual. Black’s Law Dictionary 494 (9th

ed. 2009) (defining “constructive delivery” as “[a]n act that amounts to a transfer

of title by operation of law when actual transfer is impractical or impossible”). We

need not define the precise boundaries of “actual delivery” here, as we can say

with confidence that the exception does not cover the sort of constructive delivery

Martin and Jager insist occurred. Moreover, we cannot interpret the exception

with a myopic focus on the term “delivery” at the expense of other language. If

“actual delivery” means anything, it means something other than simply

“delivery,” for we must attach meaning to Congress’s use of the modifier “actual.”

See Corley, 556 U.S. at 314, 129 S. Ct. at 1566 (restating “one of the most basic

interpretive canons”: that statutes must be construed to avoid rending language

inoperative).

Third, even if we accepted for the sake of argument that the Code applied,

these transactions still would not result in “delivery” as the term is used in the

Code, much less “actual delivery” as the term is used in the Act. The district court

found Hunter Wise had nothing to deliver, constructively or otherwise, and on the

record before us, that finding was not clearly erroneous. The evidence before the

district court showed that Hunter Wise did not own a sufficient inventory of metals

to cover its liabilities to the retail customers. (R. 4-17 at 25–26, 54.) Like its retail

customers, the evidence showed Hunter Wise had margin trading accounts with its

23
 Case: 13-10993 Date Filed: 04/15/2014 Page: 24 of 28

suppliers subject to minimum margin requirements and margin calls. (R. 4-17 at

25; R. 4-17 at 53.) Accordingly, the district court found that Hunter Wise did not

possess or control an inventory of metals from which it could deliver to retail

customers, nor did Lloyds or the dealers. While Martin and Jager contest this

factual finding, after review of the entire record, we are not left with a definite and

firm conviction that it was error. Based on its sound factual finding and after de

novo review, the district court’s legal conclusion that the exception did not apply

was not erroneous.

Lastly, while we need not turn to the Commission’s informal interpretation

because “actual delivery” unambiguously excludes the constructive delivery

Martin and Jager argue occurred, we nonetheless observe that it complements our

conclusion. In an interpretative statement, the Commission opined that “actual

delivery” would be satisfied, among other things, by “physical[] delivery [of] the

entire quantity of the commodity purchased by the buyer, including any portion of

the purchase made using leverage, margin, or financing” into possession of the

buyer or a depository other than the seller’s. Retail Commodity Transactions

Under Commodity Exchange Act, 78 Fed Reg. 52426, 52428 (Aug. 23, 2013).

The Commission emphasized “Congress’s use of the word ‘actual’ to modify

‘delivery’” to support its interpretation. Id. It noted specifically that a book entry

purporting to show that delivery has been made or that the sale has been covered or

24
 Case: 13-10993 Date Filed: 04/15/2014 Page: 25 of 28

hedged would not suffice. Id. The district court’s sound factual findings indicate

that “delivery” as it occurred following the Portal transactions was akin to such

book entries and unlike the situations the Commission said would satisfy the

exception’s requirements.

2. Enforceable Obligation to Deliver Exception

The Act also excepts from the Commission’s authority “a contract of sale

that creates an enforceable obligation to deliver between a seller and a buyer that

have the ability to deliver and accept delivery, respectively, in connection with”

their lines of business. 7 U.S.C. § 2(c)(2)(D)(ii)(III)(bb). Martin and Jager argue

that: (1) these transactions created such an obligation; (2) Hunter Wise can deliver

in connection with its line of business; and (3) Lloyds and the dealers can accept

delivery in connection with their lines of business.

Even if the court accepted the specious arguments that these were arm’s-

length, dealer-to-dealer transactions (rather than transactions with retail customers)

and that the transactions created some enforceable obligation to deliver, the district

court found that Hunter Wise lacked the ability to deliver because it had no

inventory of metals, as set out above. Based on the officer declarations from the

trading companies with which Hunter Wise held accounts, Hunter Wise never

owned enough metal outright to cover its liabilities for the retail transactions at

issue. (R. 4-17 at 25–26, 54.) Again, it cannot be said this is a clearly erroneous

25
 Case: 13-10993 Date Filed: 04/15/2014 Page: 26 of 28

finding of fact, nor can it be said the district court committed an error of law in

concluding that the exception did not apply.

C. The Commission pleads a prima facie case of illegality and the likelihood of

future wrongdoing.

The Act prohibits commodity futures trading not conducted subject to the

rules of a regulated exchange. 7 U.S.C. § 6(a). The Commission pleaded and

presented ample evidence that the Portal transactions were subject to the Act and

did not take place on any exchange. Additionally, the record supports the district

court’s conclusion that the Commission alleged a prima facie violation of the fraud

provisions found at 7 U.S.C. § 6b. To establish liability for fraud, the Commission

must prove: “(1) the making of a misrepresentation, misleading statement, or a

deceptive omission; (2) scienter; and (3) materiality.” Commodity Future Trading

Comm’n v. R.J. Fitzgerald & Co., 310 F.3d 1321, 1328 (11th Cir. 2002). The

Commission pleaded facts plausibly supporting those elements and offered

evidence at the preliminary injunction hearing to support each element. It showed

that Appellants, Hunter Wise, and their co-defendants misrepresented the nature of

the Portal transactions. The Commission showed that, Hunter Wise, via the Portal,

represented to retail customers that the customers were buying and selling physical

metals and that dealers were storing metals in depositories on customers’ behalf,

(e.g., R. 4-12 at 592; R. 4-20 at 44), when in fact Appellants knew Hunter Wise

26
 Case: 13-10993 Date Filed: 04/15/2014 Page: 27 of 28

maintained margined trading positions in metals rather than physical inventory.

(R. 4-10 at 30–31; R. 4-11 at 24–25; R. 4-17 at 24–26; R. 4-17 at 53–54.) And we

have little difficulty affirming the district court’s conclusion that these

misrepresentations were material; a reasonable investor would consider

representations about the nature of the transaction “important in deciding whether

to make an investment.” R.J. Fitzgerald & Co., 310 F.3d at 1328–29. Thus, the

Commission made a “proper showing,” a prima facie case for the illegality of the

transactions at issue. 7 U.S.C § 13a-1(b); Muller, 570 F.2d at 1300.

Additionally, to the extent such a showing is required to support a

preliminary injunction under the Act, the district court’s finding that there was a

reasonable likelihood of future wrongdoing was not error. The evidence before the

district court showed – and the district court found – that the transactions were not

isolated, one-time occurrences and that some defendants contested the illegality of

the scheme. In light of that evidence and pursuant to de novo review, we affirm

the district court’s legal conclusion that there was a reasonable likelihood of the

transactions continuing.

D. The court need not reach the Commission’s alternative basis for the

injunction.

The Commission argues that its allegations of Hunter Wise’s use of scheme

or artifice to defraud, in violation of 7 U.S.C. § 9(1), provides a separate and

27
 Case: 13-10993 Date Filed: 04/15/2014 Page: 28 of 28

independent basis for affirming the district court’s preliminary injunction. It

asserts that even if the Commission lacked authority under § 2(c)(2)(D), it still has

authority under § 9(1), which applies broadly to fraud “in connection with . . . any

contract of sale of any commodity in interstate commerce,” irrespective of whether

the transactions are margined, leveraged, or otherwise financed. Id. § 9(1); 17

C.F.R. § 180.1. We decline to reach this question because the Commission had

authority under § 2(c)(2)(D).

V. CONCLUSION

Martin and Jager’s arguments appear to rest in large part on their insistence

that the Portal’s retail customers were buying more than a margined interest in

precious metals. That insistence is incompatible with the district court’s factual

findings at this stage, which we hold were not clear error. In light of the district

court’s factual findings and legal conclusions with which we agree, we hold that

the Commission has enforcement authority over these transactions, and no

exception applies. Because the Commission has pleaded a prima facie case of a

violation of the Act, we affirm the district court’s grant of the preliminary

injunction.

AFFIRMED.

28