BACHE HALSEY STUART, INC.
v.
George E. HUNSUCKER, Jr.
No. 7726SC916.
Court of Appeals of North Carolina.
November 7, 1978.*568 Fleming, Robinson & Bradshaw by C. Richard Rayburn, Jr., Charlotte, for plaintiff-appellee.
Grier, Parker, Poe, Thompson, Bernstein, Gage & Preston, by Gaston H. Gage, Charlotte, for defendant-appellant.
MORRIS, Judge.
The question defendant has presented to this Court is whether his second and third counterclaims allege a cause of action sufficient to withstand the plaintiff's motion to dismiss. G.S. 1A-1, Rule 12(b)(6). Defendant argues that plaintiff's unauthorized sale of futures contracts, unauthorized purchases of contracts to close out defendant's position, and subsequent liquidation of his cash and margin accounts constituted violations of the North Carolina unfair trade practices statute, G.S. 75-1.1, entitling him to treble damages and attorney's fees under G.S. 75-16 and G.S. 75-16.1. Plaintiff argues that the commodities brokerage business is not in "trade or commerce" as our Supreme Court has interpreted the coverage of the statute; and even if it is within the statute, it is not a violation of the standards imposed by that statute. Both plaintiff and defendant rely on the recent decision in Edmisten, Attorney General v. Penney Co., 292 N.C. 311, 233 S.E.2d 895 (1977). For reasons discussed below, we find that decision not dispositive of this case.
The parties in their briefs point out that the commercial activity surrounding the commodities futures exchanges is a field highly regulated by federal statutes and administrative regulations under the Commodity Exchange Act, 7 U.S.C.A. § 1, et seq. Pursuant to the Commodity Futures Trading Commission Act of 1974, Pub.L. No. 93-463, 88 Stat. 1389, et seq., which amended the Commodity Exchange Act, a *569 regulatory commission was established and entrusted with enforcing the requirements and proscriptions of that Act. The jurisdiction of the Commission established by that Act is set out in 7 U.S.C.A. § 2 (Supp.1978).
"* * * Provided, That the Commission shall have exclusive jurisdiction with respect to accounts, agreements (including any transaction which is of the character of, or is commonly known to the trade as, an `option', `privilege', `indemnity', `bid,' `offer', `put', `call', `advance guaranty', or `decline guaranty'), and transactions involving contracts of sale of a commodity for future delivery, traded or executed on a contract market designated pursuant to section 7 of this title or any other board of trade, exchange, or market, and transactions subject to regulation by the Commission pursuant to section 15a of this title: And provided further, That, except as hereinabove provided, nothing contained in this section shall (i) supersede or limit the jurisdiction at any time conferred on the Securities and Exchange Commission or other regulatory authorities under the laws of the United States or of any State, or (ii) restrict the Securities and Exchange Commission and such other authorities from carrying out their duties and responsibilities in accordance with such laws. Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State. * * *"
The Act governs the conduct of parties involved in the commodities markets. It makes it unlawful for the employee of any member of a board of trade or commodity exchange "to cheat or defraud or attempt to cheat or defraud" a customer. 7 U.S. C.A. § 6b (Supp.1978). The federal courts, in applying the Act, have held "[t]here is now no doubt that it is a violation of the Commodity Exchange Act for an account executive in the commodity brokerage business intentionally to carry on trading transactions not authorized by his customer." Haltmier v. Commodity Futures Trading Commission, 554 F.2d 556, 560 (2d Cir. 1977). See e. g., Silverman v. Commodity Futures Trading Commission, 549 F.2d 28 (7th Cir. 1977). It has also been held by an administrative agency that deliberate, wilful, and unauthorized trading by a commodities broker for the account of his customer violates 7 U.S.C.A. § 6b. We also note that the statute provides not only for suspension of brokers for violations of the Act, 7 U.S. C.A. § 9 (Supp.1978), it also provides a complete administrative procedure for hearing customer complaints and provides for the award of monetary damages. 7 U.S. C.A. § 18 (Supp.1978). There is full right of review to the appropriate United States Court of Appeals. Id. The exclusive nature of that procedure for redress against market members for damages resulting from a violation of the Act is apparent from the cases dismissing actions for failure to exhaust administrative remedies. Bartels v. International Commodities Corp., 435 F. Supp. 865 (D.C.Conn.1977); Consolo v. Hornblower & Weeks-Hemphill, Noyes, 436 F. Supp. 447 (N.D.Ohio 1976).
In a very recent case the Supreme Court of Arkansas addressed the question, on demurrer, whether that State's securities commissioner could maintain a suit against a commodities broker to enjoin certain activity alleged to violate state securities laws. International Trading, Ltd. v. Bell, Ark., 556 S.W.2d 420 (1977), cert. denied, 556 S.W.2d 420 (1978). The Arkansas Court held that the state regulation of commodities brokers was pre-empted by the Commodity Exchange Act as amended by the Commodity Futures Trading Act as found in 7 U.S.C.A. § 2, and that the state court had no jurisdiction to issue an injunction based on the state securities act. The United States Supreme Court denied certiorari.
The International Trading, Ltd. case arose under a state securities statute. The provisions of that statute sought to be enforced against the appellant were intended to prevent fraud or deceit upon purchasers and investors in commodities futures. Ark. Stat.Anno., § 67-1236(a) (Repl.1966). The remedy sought was an injunction to prevent appellant's continued "boiler room" like sales campaign tactics. The complaint alleged *570 schemes to defraud and untrue statements of material fact. The Arkansas Court found that the Arkansas securities commissioner and the trial court were without authority to regulate conduct in the field of commodities futures in the face of a pervasive federal regulatory scheme and clear congressional intent to vest in the federal regulatory commission exclusive jurisdiction.
International Trading, Ltd. is instructive on the delicate balance which must be struck between the traditional exercise of state police powers and the regulation on the national level of activity in interstate commerce. That Court found that although the enforcement of state regulatory acts would be precluded, traditional private causes of action such as fraud would be less likely to interfere with the federal scheme and thus would not necessarily be pre-empted. This observation is supported by and indicates the purpose of this language in 7 U.S.C.A. § 2: "Nothing in this section shall supersede or limit the jurisdiction conferred on courts of the United States or any State." Other courts have also suggested that if a customer's claim arises out of a violation of the common law he may take his claim to state court. Arkoosh v. Dean Witter & Co., Inc., 415 F. Supp. 535 (D.Neb. 1976); E. F. Hutton Co., Inc. v. Lewis, 410 F. Supp. 416 (E.D.Mich.1976).
We consider International Trading, Ltd. to be persuasive authority in our construction of the scope of G.S. 75-1.1. Although the case sub judice is a private action under an unfair trade practices act, the present relief sought and the implications of a finding that plaintiff's conduct constitutes an unfair act or practice could result in state regulation no less intrusive on the federal scheme than that struck down in Arkansas. A finding that plaintiff's conduct violated G.S. 75-1.1 would expose it to a host of legislatively created sanctions in addition to those sought in defendant's counterclaims. G.S. 75-14 establishes a cause of action in the Attorney General for injunctive relief against violations of G.S. 75-1.1. Furthermore, the Attorney General would be entitled to seek a court order to restore money or property or cancel any contracts obtained as a violation of the statute. G.S. 75-15.1. If the Attorney General were plaintiff in this action and were seeking injunctive relief as is defendant in his counterclaim, we would be disposed to find that the State regulation was pre-empted.[1] We decline to view this case differently because it is in the nature of a private action seeking damages and injunctive relief. Therefore, because of the well-established principle of statutory construction that courts should interpret statutes so as to avoid unconstitutionality (see generally 16 Am.Jur.2d, Constitutional Law, § 144), we decline to hold that G.S. 75-1.1 will support a cause of action against a commodity broker for activity which is regulated under the Commodity Exchange Act, 7 U.S.C.A. § 1 et seq.
In passing we reiterate that the defendant is not without remedy for any injury suffered. He may turn to traditional common law actions to seek damages. It would be inappropriate for this Court to expand a traditional common law action into an unfair trade practice in the face of the pervasive federal regulatory scheme. Recognizing an act as an unfair trade practice creates remedies unavailable at common law and could involve the Attorney General and the courts of this State in the sphere of a highly volatile commercial activity in interstate commerce. Such an expansion of state regulatory power is improper when Congress has clearly expressed its intent to exercise exclusive jurisdiction over the activity of the commodity exchanges and has provided elaborate administrative procedures for the redress of grievances. See *571 generally Johnson, Commodity Futures Trading Act: Pre-emption as Public Policy, 29 Vanderbilt L.Rev. 1 (1976).
Finally, defendant has presented to this Court for the first time on appeal a "suggestion of lack of subject matter jurisdiction". The question of subject matter jurisdiction may properly be raised for the first time on appeal. G.S. 1A-1, Rule 12(h)(3). Furthermore, this Court may raise the question on its own motion even when it was not argued by the parties in their briefs. Jenkins v. Winecoff, 267 N.C. 639, 148 S.E.2d 577 (1966). The defendant's assertion is based upon G.S. 16-3 which provides that, unless the contracts are traded on a recognized exchange whose rules and regulations require actual delivery of the commodity if demanded by either party, the courts of this State shall not have jurisdiction to entertain any suit brought upon a judgment based upon any such contracts. See e. g., Paine et al. v. Lambert, 389 F. Supp. 417 (E.D.Tenn.1975), aff'd without opinion, 524 F.2d 1405 (5th Cir. 1976) (applying similar Tenn. statute). Though it may be inferred from defendant's allegations averring that the "plaintiff is a stock and commodity broker registered with all major American stock and commodity exchanges", it is not established by the record whether the contracts giving rise to defendant's account deficit were traded on an exchange complying with the requirements of the statute. That question, however, is not properly before this Court. There has been entered no judgment, final order, or any order of any kind relating to plaintiff's action which is reviewable. See Munchak Corporation v. McDaniels, 15 N.C.App. 145, 189 S.E.2d 655 (1972); 4 C.J.S. Appeal and Error § 153c at 517. The trial court may, however, conclude that justice requires that plaintiff be allowed to amend its complaint to allege facts sufficient to indicate that the contracts complied with the requirements of G.S. 16-3.
For the foregoing reasons, the order of the trial court dismissing defendant's second and third counterclaims is
Affirmed.
HEDRICK and WEBB, JJ., concur.
NOTES
[1] Injunctive relief is also available against violations of the anti-fraud provisions of the North Carolina Securities Act, G.S. Chapter 78A. G.S. 78A-8; 78A-47. The Secretary of State is authorized to initiate suits seeking injunctive relief. Assuming plaintiff's alleged conduct was deemed to violate our own securities act anti-fraud provisions (as such conduct violated the federal anti-fraud provisions), we would again be disposed to hold that State regulation was pre-empted.