Forex Capital Markets, Llc v. Kelly M. Crawford, Receiver

• Court: Court of Appeals of Texas
• Decided: February 17, 2015
• Docket: 15-0131
• Status: Published

Opinion

FILED 15-0131 2/17/2015 1:27:24 PM tex-4174474 SUPREME COURT OF TEXAS BLAKE A. HAWTHORNE, CLERK

NO. _________

IN THE SUPREME COURT OF TEXAS AUSTIN, TEXAS

FOREX CAPITAL MARKETS, LLC, Petitioner, v. KELLY M. CRAWFORD, RECEIVER, Respondent.

PETITION FOR REVIEW

OF COUNSEL: Christopher H. Rentzel (Application for admission Texas Bar No. 16785500 pro hac vice forthcoming) Kevin T. Schutte Texas Bar No. 24033050 Lloyd A. Kadish BRACEWELL & GIULIANI LLP Illinois Bar No. 01378767 1445 Ross Avenue, Suite 3800 LLOYD KADISH & ASSOCIATES, LTD. Dallas, Texas 75202 345 North Canal Street, Suite 901 Telephone: (214) 468-3800 Chicago, Illinois 60606 Facsimile: (800) 404-3970 Telephone: (312) 559-9181 christopher.rentzel@bgllp.com Facsimile: (312) 264-0470 lkadish@aol.com Yvonne Y. Ho Texas Bar No. 45055673 BRACEWELL & GIULIANI LLP 711 Louisiana Street, Suite 2300 Houston, Texas 77002 Telephone: (713) 223-2300 Facsimile: (800) 404-3970

ATTORNEYS FOR PETITIONER FOREX CAPITAL MARKETS, LLC IDENTITIES OF PARTIES AND COUNSEL Petitioner: Forex Capital Markets, LLC

Counsel for Petitioner: Christopher H. Rentzel Kevin T. Schutte BRACEWELL & GIULIANI LLP 1445 Ross Avenue, Suite 3800 Dallas, Texas 75202-2711 Telephone: (214) 468-3800 Facsimile: (800) 404-3970

Yvonne Y. Ho BRACEWELL & GIULIANI LLP 711 Louisiana Street, Suite 2300 Houston, Texas 77002 Telephone: (713) 223-2300 Facsimile: (800) 404-3970

Lloyd A. Kadish Of counsel (application for admission pro hac vice forthcoming) LLOYD KADISH & ASSOCIATES, LTD. 345 North Canal Street, Suite 901 Chicago, Illinois 60606 Telephone: (312) 559-9181 Facsimile: (312) 264-0470

Respondent: Kelly Crawford, Receiver, as Assignee

Counsel for Respondent: Charlene C. Koonce J. Mitchell Little SCHEEF & STONE, L.L.P. 2601 Network Blvd., Suite 102 Frisco, Texas 75034 Telephone: (214) 472-2100 Facsimile: (214) 472-2150 TABLE OF CONTENTS

Page IDENTITIES OF PARTIES AND COUNSEL ........................................................ i INDEX OF AUTHORITIES................................................................................... iv

STATEMENT OF THE CASE .............................................................................. vii

STATEMENT OF JURISDICTION..................................................................... viii ISSUE PRESENTED ................................................................................................x

INTRODUCTION ....................................................................................................1

STATEMENT OF FACTS .......................................................................................2 A. The Investors authorized Revelation to engage a broker on their behalf. ...................................................................................................2

B. Revelation and its successors agreed to arbitrate disputes with FXCM. ..................................................................................................2 C. As Revelation’s representative and successor, the Receiver sued FXCM, asserting claims assigned by Revelation’s Investors that had become property of his estate. .......................................................4

D. The trial court and the court of appeals refused to enforce the arbitration clause against the Receiver. ................................................5 SUMMARY OF THE ARGUMENT .......................................................................6 ARGUMENT ............................................................................................................7

I. Whether The Receiver Is Bound To Arbitrate Presents A Question Of Law That This Court Reviews De Novo. .......................................................7 II. The Court Of Appeals Erred By Refusing To Enforce The Arbitration Clause..............................................................................................................8 A. Legal constraints on the Receiver’s authority bind him to the arbitration clause, regardless of whether he acquired these claims by assignment. ..........................................................................9

-ii- Page B. The Receiver’s obligation to arbitrate these claims predates the assignments and is thus binding on the Receiver. ..............................14

PRAYER .................................................................................................................17

CERTIFICATE OF SERVICE ...............................................................................19

CERTIFICATE OF COMPLIANCE ......................................................................20

APPENDIX .............................................................................................................21

-iii- INDEX OF AUTHORITIES

Page(s) Cases Akin Gump, Strauss, Hauer & Feld, L.L.P. v. E-Court, Inc., No. 03-02-00714-CV, 2003 WL 21025030 (Tex. App.—Austin May 8, 2003, no pet.) ................. viii, 9

Cotten v. Republic Nat’l Bank, 395 S.W.2d 930 (Tex. App.—Dallas 1965, writ ref’d n.r.e.) ..................... viii, 10

In re D. Wilson Constr. Co., 196 S.W.3d 774 (Tex. 2006) (orig. proceeding) .................................................. 7 Finova Capital Corp. v. Lawrence, No. 399CV2552-M, 2000 WL 1808276 (N.D. Tex. Dec. 8, 2000) ....................................................................................10 Forest Oil Corp. v. McAllen, 268 S.W.3d 51 (Tex. 2008)...................................................................................7 Forex Capital Mkts., LLC v. Crawford, No. 05-14-00341-CV, 2014 WL 7498051 (Tex. App.—Dallas Dec. 31, 2014) ................................................................... vii

Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621 (Tex. 2012) (per curiam) .........................................................12 Global Drywall Sys., Inc. v. Coronado Paint Co., 104 S.W.3d 538 (Tex. 2003) ..............................................................................14 Hayes and Co. v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149 (3d Cir. 1989) .......................................................................12, 13 J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223 (Tex. 2003) ................................................................................ 8 Janvey v. Democratic Senatorial Campaign Comm., Inc., 712 F.3d 185 (5th Cir. 2013) ........................................................................10, 16

-iv- Page(s) In re L&L Kempwood Assocs., L.P., 9 S.W.3d 125 (Tex. 1999) (per curiam)................................................................ 7

Logan v. JKV Real Estate Servs. (In re Bogdan), 414 F.3d 507 (4th Cir. 2005) ..................................................................10, 11, 16

MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475 (Tex. 2010) ..............................................................................12

Murphy Oil USA, Inc. v. Wood, 438 F.3d 1008 (10th Cir. 2006) ..........................................................................15 Oakes v. Lake, 290 U.S. 59 (1933) ..............................................................................................16

Petrofac, Inc. v. DynMcDermott Petroleum Operations Co., 687 F.3d 671 (5th Cir. 2012) ..................................................... 8 Prudential Secs., Inc. v. Marshall, 909 S.W.2d 896 (Tex. 1995) ................................................................................ 7 Reneker v. Offill, 3:08-CV-1394-D, 2012 WL 2158733 (N.D. Tex. June 14, 2012) ............................................................................10, 12 Scholes v. Lehmann, 56 F.3d 750 (7th Cir. 1995) ................................................................................10 Scholes v. Stone, McGuire & Benjamin, 821 F. Supp. 533 (N.D. Ill. 1993) .......................................................................10 Seagull Energy E&P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342 (Tex. 2006) ..............................................................................14

Secs. & Exch. Comm’n v. White Civil Action No. 4:13-cv-383 (E.D. Tex. July 9, 2013) .................................4, 12 State v. Hogg, 535 A.2d 923 (Md. 1988), abrogated on other grounds, Dawkins v. Baltimore City Police Dep’t, 827 A.2d 115 (Md. 2003) ...................................................................................15

-v- Page(s) United States Commodity Futures Trading Comm’n v. RFF GP, LLC, Civil Action No. 4:13-cv-382 (E.D. Tex. July 9, 2013) .................................4, 12

United States Small Bus. Admin. v. Coqui Capital Mgmt., LLC, No. 08 Civ. 0978, 2008 WL 4735234 (S.D.N.Y. Oct. 27, 2008) ...............................................12, 16

Statutes 9 U.S.C. § 1, et seq.....................................................................................................7 TEX. GOV’T CODE ANN. 22.225(c) ............................................................................ix TEX. GOV’T CODE ANN. § 22.001(a)(2) ....................................................................ix

Rules TEX. R. EVID. 201(d) ................................................................................................12

Treatises COLLIER ON BANKRUPTCY ¶ 323.02[4] ....................................................................13 CORBIN ON CONTRACTS § 51.2 (2014) .....................................................................15

Other Authorities Details for Forex Capital Markets LLC (NFA ID: 0308179), National Futures Association, available at http://www.nfa.futures.org/ basicnet/Details.aspx?entityid=uy8vi7mVysc%3d&rn =Y.................................. 2

RESTATEMENT (SECOND) OF CONTRACTS § 336(4) (1981) ..........................14, 15, 16

-vi- STATEMENT OF THE CASE Nature of the This dispute pertains to the enforcement of an arbitration Case: agreement against the receiver for an investment partnership. Respondent Kelly Crawford, a court-appointed receiver (“Receiver”) for Revelation Forex Fund, LP (“Revelation”), sued Petitioner Forex Capital Markets, LLC (“FXCM”), a futures commission merchant, in a Texas state district court. (CR.11, 301- 02). The Receiver’s claims were allegedly obtained by assignment from third-party investors who were limited partners of Revelation. (CR.13). By agreement, Revelation and its “estate, . . . administrators, legal representatives, [and] successors” must arbitrate all disputes against FXCM. (App. A at 4 ¶ 23; CR.825 ¶ 23; CR.826-27). That same agreement also requires all judicial proceedings in connection with these transactions to be held in New York. (CR.826 ¶ 30).

Trial Court: Hon. Jill Willis, 429th Judicial District Court of Collin County, Texas

Trial Court’s FXCM filed a Motion to Compel Arbitration, pursuant to an Action: enforceable arbitration agreement. (CR.161-267). In the alternative, FXCM filed a motion to dismiss based on a mandatory forum selection clause in the same agreement. (CR.161-267). The trial court denied both motions on March 7, 2014. (App. B; CR.1070-71).

Court of Fifth District of Texas at Dallas; Justices O’Neill, Lang-Miers, and Appeals: Brown

Court of On March 18, 2014, FXCM filed a notice of interlocutory appeal Appeals from the denial of its motion to compel arbitration. (CR.1102-04). Disposition: On April 16, 2014, FXCM filed a petition for writ of mandamus from the denial of its motion to dismiss based on the forum- selection clause. The court of appeals consolidated both proceedings. On December 31, 2014, the court of appeals issued an opinion denying mandamus relief and affirming the order denying FXCM’s motion to compel arbitration. Forex Capital Mkts., LLC v. Crawford, No. 05-14-00341-CV, 2014 WL 7498051 (Tex. App.—Dallas Dec. 31, 2014); (App. C, slip op).

-vii- STATEMENT OF JURISDICTION This petition for review presents the same legal question involving the same

contractual agreement for which Petitioner Forex Capital Markets, LLC (“FXCM”)

has also sought mandamus relief in this Court. See In re Forex Capital Markets,

LLC, No. 15-0128 (Tex. Feb. 16, 2015). Whereas this petition requests that the

Court enforce an arbitration clause in the agreement, FXCM’s petition for writ of

mandamus requests enforcement of a forum selection clause in that agreement.

Yet in both proceedings, the issue is whether an equity receiver can escape the

contractual obligations of the receivership entity he represents, merely because he

purports to be asserting claims assigned to him by third parties.

By allowing Respondent Kelly Crawford (the “Receiver”) to avoid his

contractual obligation to arbitrate, the court of appeals created a conflict with

decisions by Texas courts recognizing that receivers cannot bring claims unless

they are property of the receivership estate. See Akin Gump, Strauss, Hauer &

Feld, L.L.P. v. E-Court, Inc., No. 03-02-00714-CV, 2003 WL 21025030, at *5

(Tex. App.—Austin May 8, 2003, no pet.) (“[A] receiver does not have an

unfettered right to represent creditors and shareholders of a corporation. A

receiver may represent creditors and shareholders only to the extent that the cause

of action seeks to preserve or recover corporate assets.”); Cotten v. Republic Nat’l

Bank, 395 S.W.2d 930, 931 (Tex. App.—Dallas 1965, writ ref’d n.r.e.) (same

-viii- principle). If the Receiver can only bring assigned claims that are property of the

receivership estate, then he is subject to the contractual obligations of the

receivership entity he represents when asserting these claims—here, the arbitration

(and forum selection) clause. This conflict warrants review. See TEX. GOV’T

CODE ANN. §§ 22.001(a)(2); 22.225(c).

Even if the Court declines to find a direct conflict with prior Texas opinions,

the Court should exercise its equitable power to hold this petition for review until

FXCM’s related petition for writ of mandamus has been decided. Because the

reasons for enforcing the arbitration clause are identical to those raised in FXCM’s

mandamus petition, a hold is warranted to avoid the potential for creating a conflict

in this case regarding the enforceability of interrelated provisions of the same

agreement. Under these unique circumstances, the petition for review should, at

minimum, be held until FXCM’s petition for writ of mandamus is resolved.

-ix- ISSUE PRESENTED Whether an equity receiver is required to arbitrate claims procured by assignment from third parties, when:

a. the assignments made the claims property of the receiver’s estate and the estate is bound to the arbitration clause; and

b. the receiver’s obligation to arbitrate this dispute accrued before he received the assignments.

-x- INTRODUCTION The lower courts incorrectly allowed an equity receiver to circumvent his

contractual obligation to arbitrate these claims, merely because he purports to be

asserting claims assigned by third parties. It does not matter that the receiver

purports to bring these claims as assignee because the claims are now the property

of his estate. The receiver is bound to the arbitration clause because he “stands in

the shoes” of the receivership entity which is indisputably bound by it. The

receiver is also bound to the clause under the plain language of the contract.

Established receivership law dictates that a receiver only has the standing to

bring assigned claims if they belong to his estate. Because the claims must now

belong to his estate, the receiver is subject to the contractual obligations of that

estate—including the arbitration clause. Moreover, the contract explicitly provides

that the receiver, as the legal representative or successor of the receivership entity,

is bound to the arbitration clause regardless of how the estate obtained these

claims. This Court should prevent the Receiver from using an “assignment”

strategy to evade his contractual obligations, reverse the court of appeals’

judgment, and enforce the arbitration clause. STATEMENT OF FACTS

A. The Investors authorized Revelation to engage a broker on their behalf. Revelation Forex Fund, L.P. (“Revelation”) is an investment fund that

solicited investors (“Investors”) to purchase limited partnership interests.

(CR.841-74). Revelation’s general partner was RFF GP, LLC, which, in turn, was

solely owned by Kevin G. White (“White”). (CR.835-37, 841).

Before making their investments, the Investors expressly authorized RFF to

make decisions and conduct business on Revelation’s behalf, (CR.854; CR.891-92

§ 10.01; CR.900 ¶ 18), and allowed Revelation to invest on their behalf in accounts

maintained in Revelation’s name. (CR.880 § 2.01(b); CR.900 ¶ 18(b)). Revelation

also advised the Investors it intended to trade foreign currencies (“Forex”), and that

RFF would have exclusive control over that trading. (CR.845, 852-53).

B. Revelation and its successors agreed to arbitrate disputes with FXCM. Acting on Revelation’s behalf, White opened an account with Forex Capital

Markets, LLC (“FXCM”), a futures commission merchant that provides online

platforms for Forex trading worldwide. (See CR.822). FXCM is registered with

the National Futures Association and is headquartered in New York City. (CR.826

¶ 28); see also Details for Forex Capital Markets LLC (NFA ID: 0308179),

National Futures Association, available at http://www.nfa.futures.org/

basicnet/Details.aspx?entityid=uy8vi7mVysc%3d&rn =Y.

-2- To open the account, White executed a Client Agreement in Revelation’s

name (the “Client Agreement” or “Agreement”). (CR.821-38). Pursuant to that

Agreement, Revelation agreed to arbitrate all disputes in connection with its

transactions through FXCM:

[Revelation] agrees and, by opening one or more accounts for [Revelation], FXCM also agrees, that any and all disputes, controversies, or claims arising out of this Client Agreement, or the relationships or activities contemplated thereby, including whether or not any such dispute, controversy, or claim is arbitrable, shall be resolved by an Arbitration Panel selected by the National Futures Association (“NFA”), pursuant to the NFA’s Code of Arbitration. The award of the NFA Arbitrators, or of the majority of them, shall be final, and judgment upon the award may be entered in any court of competent jurisdiction.

(App. A at 6; CR.827 (emphasis added)). Revelation also agreed that its estate,

legal representatives, and successors are to be bound to the terms of the Client

Agreement, including the arbitration clause:

This Client Agreement including all authorizations, shall inure to the benefit of FXCM and its successors and assigns, whether by merger, consolidation or otherwise, and shall be binding upon Trader and/or the estate, executor, trustees, administrators, legal representatives, successors and assigns of [Revelation] . . . .

(App. A at 4, ¶ 23; CR.825 ¶ 23 (emphasis added)). The Client Agreement also

includes a forum selection clause specifying that any dispute in connection with

the trading transactions must be resolved in New York. (App. A at 5, ¶ 30; CR.826

-3- ¶ 30). Revelation, through White, “acknowledge[d] [its] agreement [with] and

understanding of” these provisions. (CR.834).

C. As Revelation’s representative and successor, the Receiver sued FXCM, asserting claims assigned by Revelation’s Investors that had become property of his estate. As a result of two lawsuits,1 the Receiver was appointed for White, RFF,

KGM Capital Management, LLC, and Revelation. (CR.12, 48, 53, 66). The

Receiver was given the authority to pursue claims and bring actions in connection

with the property of his estate. (CR.45-64; CR.65-81). The Receiver then devised

a plan to obtain assignments from the Investors in order to pursue certain causes of

action in Texas state court. (2RR.21:5-8; CR.452-559).

The Receiver filed this suit against FXCM, (CR.11), purporting to act

“solely” as assignee of all Investors in Revelation. (CR.301-02). The Receiver

alleges that Revelation operated as a fraud, using FXCM as its broker and FXCM’s

employee, Brian Hinman, as its trader. (CR.14). According to the Receiver,

FXCM did not properly supervise Hinman in his efforts to solicit funds and trade

for Revelation. (CR.24-25, 37-38). The Receiver claims that FXCM is liable for

the loss of the funds that the Investors deposited into Revelation. (CR.35-38, 42).

1 Secs. & Exch. Comm’n v. White (“SEC Action”), Civil Action No. 4:13-cv- 383 (E.D. Tex.) (filed July 9, 2013); United States Commodity Futures Trading Comm’n v. RFF GP, LLC (“CFTC Action”), Civil Action No. 4:13-cv-382 (E.D. Tex.) (filed July 9, 2013).

-4- D. The trial court and the court of appeals refused to enforce the arbitration clause against the Receiver. FXCM filed a timely Motion to Compel Arbitration under the Federal

Arbitration Act (the “FAA”). (CR.168-71). In the alternative, FXCM filed a

motion to dismiss the Receiver’s suit based on the forum selection clause in the

same Client Agreement. (CR.165-68). The trial court denied both motions on

March 7, 2014. (CR.1070-71). FXCM filed an interlocutory appeal from the

denial of its motion to compel arbitration, and filed a petition for writ of mandamus

from the denial of its motion to dismiss. The court of appeals granted FXCM’s

motion to consolidate these two proceedings.

On December 31, 2014, the court of appeals affirmed the order denying

FXCM’s motion to compel arbitration. (App. C, slip op. at 1, 7). The court held

that the Receiver is not bound to arbitrate the assigned claims because the Investors

were not parties to the Client Agreement containing the arbitration clause. (App.

C, slip op. at 4-5, 7). While the court agreed that receivers generally are bound to

the contractual obligations of their receivership entities, it found that this Receiver

could avoid such obligations simply by asserting claims assigned to him by the

Investors. (App. C, slip op. at 5-6). Applying the same reasoning, the court of

appeals also denied mandamus relief from the order refusing to enforce the forum

selection clause. (See App. C, slip op. 6-7).

-5- FXCM filed this petition for review based on the arbitration clause in the

Client Agreement. Relatedly, FXCM also filed a petition for writ of mandamus

based on the forum selection clause in the same Agreement. See In re Forex

Capital Markets, LLC, No. 15-0128 (Tex. Feb. 16, 2015).

SUMMARY OF THE ARGUMENT There is no dispute that the arbitration clause covers the subject matter of the

Receiver’s claims, or that the clause is otherwise valid and enforceable. The only

issue is whether the Receiver is bound to the arbitration clause when he asserts

claims assigned to him by third parties. The answer to that question is “yes.”

First, legal constraints on the Receiver’s authority dictate that the arbitration

clause applies to the Receiver’s claims. Under settled law, a receiver can only

bring assigned claims that belong to, and are property of, his receivership estate—

here, the estate of Revelation, which executed the Client Agreement. Because the

claims are now part of the Receiver’s estate, he is subject to all the same

obligations that applied to Revelation, including the arbitration clause. As the case

law makes clear, the Receiver “stands in the shoes” of his estate.

Second, the arbitration clause applies to the Receiver under general

principles of contract law. An assignee, like the Receiver, remains subject to any

defenses that FXCM could have asserted against him before the assignments

occurred. Here, both the Client Agreement and settled principles of receivership

-6- law bound the Receiver to the arbitration clause when he was appointed

Revelation’s receiver—before he solicited the assignments of the Investors’

claims. Because the obligation stemming from the arbitration clause pre-dates the

assignments, the Receiver is bound to the clause as a matter of law. This Court

should reverse and direct that all claims be dismissed.

ARGUMENT

I. Whether The Receiver Is Bound To Arbitrate Presents A Question Of Law That This Court Reviews De Novo. Because this Agreement involves interstate commerce, it is governed by the

Federal Arbitration Act (“FAA”). See 9 U.S.C. § 1, et seq.; In re L&L Kempwood

Assocs., L.P., 9 S.W.3d 125, 127 (Tex. 1999) (per curiam). The FAA embodies a

strong presumption in favor of arbitration, such that any doubts regarding

arbitrability must be resolved in favor of arbitration. Prudential Secs., Inc. v.

Marshall, 909 S.W.2d 896, 899 (Tex. 1995).

To compel arbitration, a party must satisfy two requirements: (a) the

existence of a valid agreement to arbitrate; and (b) that the claims fall within the

scope of the agreement. See In re D. Wilson Constr. Co., 196 S.W.3d 774, 781

(Tex. 2006) (orig. proceeding). When, as here, the facts relating to the existence of

a valid arbitration agreement are undisputed, this Court’s review is de novo. See

Forest Oil Corp. v. McAllen, 268 S.W.3d 51, 55 n.9 (Tex. 2008) (“The trial court’s

determination of the arbitration agreement’s validity is a legal question subject to

-7- de novo review.”) (quoting J.M. Davidson, Inc. v. Webster, 128 S.W.3d 223, 227

(Tex. 2003)).

The second requirement, whether the claims are covered by an arbitration

agreement, is undisputed, and, in any event, is not a determination for the Court.

Under the Agreement, disputes regarding arbitrability are for the arbitrators to

resolve. (CR.827); see Petrofac, Inc. v. DynMcDermott Petroleum Operations

Co., 687 F.3d 671, 674-75 (5th Cir. 2012).

II. The Court Of Appeals Erred By Refusing To Enforce The Arbitration Clause. In upholding the denial of FXCM’s motion to compel arbitration, the court

of appeals failed to correctly apply the legal principles that constrain the

Receiver’s authority. By accepting the position as a receiver, the only “shoes” the

Receiver may now wear are those of his estate. He cannot bring claims in any

other capacity. And because the estate, through Revelation, is bound to the

arbitration clause, so is the Receiver. Moreover, because the Receiver’s

obligations under the arbitration clause arose before he ever accepted the

assignments, he is also subject to the clause under applicable principles of contract

law. This Court should reverse.

-8- A. Legal constraints on the Receiver’s authority bind him to the arbitration clause, regardless of whether he acquired these claims by assignment. Because there is no dispute that the Receiver’s claims fall within the scope

of the arbitration clause, the sole issue is whether the Receiver is bound to it. On

that issue, the court of appeals found that the source of the claims was dispositive.

According to the court of appeals, the only defenses that may apply to the

Receiver’s claims are those which FXCM had against the Investors, as assignors.

(App. C, slip. op. at 4-6). But that analysis ignores receivership law, which forbids

the Receiver from asserting claims assigned by third parties unless they first have

become property of his estate. Once those claims became property of the

Receiver’s estate, it did not matter how the estate acquired them; Revelation’s

obligation to arbitrate this suit applied equally to the Receiver.

The Receiver can only represent his receivership estate; he lacks standing to

bring claims on behalf of third parties like the Investors. Texas courts have

acknowledged this principle, consistent with a long line of authority from the

federal courts. See Akin Gump, Strauss, Hauer & Feld, L.L.P. v. E-Court, Inc.,

No. 03-02-00714-CV, 2003 WL 21025030, at *5 (Tex. App.—Austin May 8,

2003, no pet.) (“[A] receiver does not have an unfettered right to represent

creditors and shareholders of a corporation. A receiver may represent creditors and

shareholders only to the extent that the cause of action seeks to preserve or recover

-9- corporate assets.”); see also Janvey v. Democratic Senatorial Campaign Comm.,

Inc., 712 F.3d 185, 190 (5th Cir. 2013) (“[A] federal equity receiver has standing

to assert only the claims of the entities in receivership, and not the claims of the

entities’ investor-creditors . . . .”). 2

Thus, the only way a receiver can bring third-party claims, such as those of

the Investors, is if those claims have become the property of his estate. See Cotten

v. Republic Nat’l Bank, 395 S.W.2d 930, 931 (Tex. App.—Dallas 1965, writ ref’d

n.r.e.) (a receiver may only bring third-party claims “to the extent that his cause of

action seeks to preserve or recover the assets” of the entity in receivership). This is

also true in the analogous context of bankruptcy, where courts permit trustees to

assert claims assigned by third parties only if those assignors have effectively

“abandon[ed] their claims,” caused the assigned claims to become “property of the

estate,” and “allow[ed] the trustee to seek recovery . . . on behalf of the estate.”

Logan v. JKV Real Estate Servs. (In re Bogdan), 414 F.3d 507, 512-13 (4th Cir.

2005); see also Finova Capital Corp. v. Lawrence, No. 399CV2552-M, 2000 WL

1808276, at *2 (N.D. Tex. Dec. 8, 2000) (same principle). In this case, the

2 See also, e.g., Scholes v. Lehmann, 56 F.3d 750, 753 (7th Cir. 1995) (“Like a trustee in bankruptcy . . . an equity receiver may sue only to redress injuries to the entity in receivership . . . .”); Reneker v. Offill, 3:08-CV-1394-D, 2012 WL 2158733, at *5 (N.D. Tex. June 14, 2012) (“‘It is a well-known legal principle that a receiver can bring only those claims belonging to the entity it represents and cannot bring claims on behalf of third parties.’”) (quoting Scholes v. Stone, McGuire & Benjamin, 821 F. Supp. 533, 535 (N.D. Ill. 1993)).

-10- assignments must—and did—make the Investors’ claims property of the

Receiver’s estate. As a result, the Receiver’s estate has become the real party in

interest, rather than the third-party Investors who assigned the claims. See In re

Bogdan, 414 F.3d at 513.

While the court of appeals acknowledged these limitations on the Receiver’s

authority, it failed to appreciate their ramifications with respect to the Receiver’s

obligations to arbitrate these claims. (See, e.g., App. C, slip op. at 5-6 & n.5).

Thus, the court of appeals erred in finding that the Receiver stood in the shoes of

the Investors. Id. at 4, 6.

The Receiver cannot elect to assert standing based solely on the “investors’

unconditional assignments” and ignore “his capacity as a receiver,” as the court of

appeals believed. (App. C, slip op. at 6). These claims against FXCM now belong

to the Receiver’s estate, and he is prosecuting them as its representative and as the

successor to Revelation. Any recovery from FXCM will become the property of

his estate and will be distributed in accordance with the estate’s guidelines, not

merely to the Investors. (CR.454-55; 2RR.28). Thus, by any measure, Mr.

Crawford is functioning as an equity receiver, not solely as an assignee, in

prosecuting these claims.

The court of appeals erred when it found that ownership of these claims was

“not pertinent to [its] resolution of this appeal.” (App. C, slip op. at 5 n.4). To the

-11- contrary, the estate’s ownership of these claims is crucial; otherwise, the Receiver

would not have standing to bring them in the first instance. See Reneker v. Offill,

3:08-CV-1394-D, 2012 WL 2158733, at *4-5 (N.D. Tex. June 14, 2012) (to have

standing, a receiver must allege “injury in fact” arising from claims belonging to

his estate).3 Had it fully considered these facts, the court of appeals would have

concluded that the Receiver stood in the shoes of his estate, not in those of the

Investors. As a result, the Receiver is bound to Revelation’s Client Agreement and

the arbitration clause in it. See United States Small Bus. Admin. v. Coqui Capital

Mgmt., LLC, No. 08 Civ. 0978, 2008 WL 4735234, at *2 (S.D.N.Y. Oct. 27, 2008).

The court of appeals also failed to apply the relevant rule in Hayes and Co.

v. Merrill Lynch, Pierce, Fenner & Smith, Inc., 885 F.2d 1149 (3d Cir. 1989).

(App. C, slip op. at 5). In Hays, the court required the bankruptcy trustee to

3 The court of appeals also erred in concluding that the Receiver “does not concede the claims themselves are receivership property.” (App. C, slip op. at 5 n.4). In fact, the Receiver admitted that these claims belong to his estate. (2RR.19-20 (admitting these are “claims of the receivership estate” that the Receiver has standing to assert)); see also SEC Action, Civil Action No. 4:13-cv- 383, Dkt. 74 at 6 (E.D. Tex. Jan. 6, 2014); CFTC Action, Civil Action No. 4:13-cv- 382, Dkt. 70 at 5 (E.D. Tex. Jan. 6, 2014) (characterizing these as “claims held by the receivership estate”) (capitalization removed). This Court should take judicial notice of these pleadings on file in the SEC and CFTC Actions, which are included in Tabs D and E of the Appendix, pursuant to Texas Rule of Evidence 201(d). See Freedom Commc’ns, Inc. v. Coronado, 372 S.W.3d 621, 623 (Tex. 2012) (per curiam) (“Under [Rule 201(d)], a court will take judicial notice of another court’s records if a party provides proof of the records.”) (citing MCI Sales & Serv., Inc. v. Hinton, 329 S.W.3d 475, 497 n.21 (Tex. 2010)).

-12- arbitrate all claims that, like those at issue here, were property of his estate. 885

F.2d at 1154. The Hays court found that, in prosecuting such claims, the trustee

was “successor to the debtor’s interest” and thus “‘subject to the same defenses as

could have been asserted by the defendant had the action been instituted by the

debtor.’” Id. (quoting COLLIER ON BANKRUPTCY ¶ 323.02[4]). The only claims

not subject to arbitration were certain “avoidance” claims that belong directly to

the trustee, rather than the debtor, and that the Bankruptcy Code confers express

standing for the trustee to bring. Id.

Under Hays, Revelation is subject to the arbitration because that clause

could have been asserted by FXCM “had the action been instituted by” Revelation.

Id. And unlike the avoidance claims addressed in Hays, the Receiver does not

acquire standing under the Bankruptcy Code, but rather, is asserting these claims

while acting as Revelation’s successor. As a result, the Receiver is subject to the

same arbitration clause that applies to Revelation.

In short, Revelation expressly agreed that its “estate,” “legal

representatives,” and “successors” must arbitrate all suits in connection with its

transactions through FXCM. (CR.825 ¶ 23). Once these assigned claims became

the property of the Receiver’s estate, all defenses against the Receiver apply when

he prosecutes them on the estate’s behalf. Because receivership principles bind the

-13- Receiver to the arbitration clause, the court of appeals erred by refusing to direct

the dismissal of this case.

B. The Receiver’s obligation to arbitrate these claims predates the assignments and is thus binding on the Receiver. The court of appeals’ exclusive focus on the origin of the assigned claims is

also misplaced because the Receiver was already bound to the arbitration clause

before the assignments occurred. Because the Receiver’s obligation to arbitrate

predates the assignments, FXCM is entitled to enforce it against the Receiver.

Basic contract principles dictate that the Receiver, as an assignee, is subject

to any defenses that FXCM could have asserted against him before the assignments

were made. For these principles, this Court need only look to the Restatement

(Second) of Contracts, as it has done in many cases. See, e.g., Seagull Energy

E&P, Inc. v. Eland Energy, Inc., 207 S.W.3d 342, 347 (Tex. 2006) (adopting

Restatement’s approach regarding the effect of an assignment); Global Drywall

Sys., Inc. v. Coronado Paint Co., 104 S.W.3d 538, 538 n.2 (Tex. 2003) (citing

Restatement’s approach regarding limitations on the right to assign claims).

The Restatement makes clear that assignees are subject to any defenses that

the defendant had against them before the assignments occurred:

An assignee’s right against the obligor is subject to any defense or claim arising from his conduct or to which he was subject as a party or a prior assignee because he had notice.

-14- RESTATEMENT (SECOND) OF CONTRACTS § 336(4) (1981); cf. CORBIN ON

CONTRACTS § 51.2 (2014) (“A counterclaim, set-off, or recoupment, arising out of

the same transaction as that by which the claim of the assignee was itself created,

is usable [by the defendant] against the assignee in precisely the same cases that it

would be so usable if it were operative as a complete defense.”). Such preexisting

defenses are unaffected by the assignments. Cf. Murphy Oil USA, Inc. v. Wood,

438 F.3d 1008, 1016-17 & n.7 (10th Cir. 2006); State v. Hogg, 535 A.2d 923, 933-

35 (Md. 1988), abrogated on other grounds, Dawkins v. Baltimore City Police

Dep’t, 827 A.2d 115 (Md. 2003).

Under these Restatement principles, the Receiver’s rights against FXCM are

subject to the arbitration clause for two reasons. First, the Client Agreement

obligated the Receiver to arbitrate all disputes against FXCM, well before the

claims were assigned to him:

This Client Agreement . . . shall be binding upon [Revelation] and/or the estate, executor, trustees, administrators, legal representatives, successors and assigns of [Revelation].

(CR.825 ¶ 23 (emphasis added)). There is no question that the Receiver falls

within the scope of this clause as Revelation’s “legal representative” or

“successor” acting on behalf of Revelation’s “estate.” Additionally, there is no

dispute that the subject matter of this suit is covered by the arbitration clause.

Since the Client Agreement contains no exception for claims acquired by

-15- assignment, those claims were subject to the Client Agreement once they became

part of the Receiver’s estate. As a result, the Receiver’s rights, even as an

assignee, are subject to FXCM’s arbitration-clause defense under the Client

Agreement that Revelation executed well before the Receiver was assigned these

claims. See RESTATEMENT (SECOND) OF CONTRACTS § 336(4).

Second, in addition to the Client Agreement’s express language, the

Receiver also was bound to the arbitration clause because of limitations on his

capacity as receiver. As soon as he accepted that position, the Receiver could only

prosecute claims on behalf of his estate, whether derived from Revelation or by

assignment. See Janvey, 712 F.3d at 190; In re Bogdan, 414 F.3d at 512-13; see

also supra 9-14. Thus, the Receiver immediately succeeded to defenses that apply

to his estate, such as the arbitration clause. 4 See Coqui Capital Mgmt., LLC, 2008

WL 4735234, at *2.

In short, under applicable contract and receivership principles, the Receiver

is bound by the arbitration clause in the Revelation-FXCM Client Agreement.

4 Nor is this principle inconsistent with Oakes v. Lake, 290 U.S. 59, 62-63 (1933), on which the court of appeals mistakenly relied. (App. C, slip op. at 6). In Oakes, the receiver acquired additional authority by the assignment of claims—just as the Receiver here has acquired standing to bring the Investors’ claims. Nowhere does Oakes suggest that an assignment negates any pre-existing defense against the Receiver. Instead, the common-law contract principles discussed above make clear that preexisting defenses can be asserted against the Receiver, as assignee.

-16- This Court should reverse the court of appeals’ judgment and order that this case

be dismissed.

PRAYER For these reasons, Petitioner Forex Capital Markets, LLC prays that this

Court grant review, reverse the court of appeals’ judgment, and order that this suit

be dismissed, or alternatively, to hold this petition until the related petition for writ

of mandamus on the enforceability of the forum selection clause is resolved.

Respectfully submitted,

BRACEWELL & GIULIANI LLP

By: /s/ Christopher H. Rentzel Christopher H. Rentzel Texas Bar No. 16785500 Chris.Rentzel@bgllp.com Kevin T. Schutte Texas Bar No. 24033050 Kevin.Schutte@bgllp.com

1445 Ross Avenue, Suite 3800 Dallas, Texas 75202 Telephone: (214) 468-3800 Facsimile: (800) 404-3970

Yvonne Y. Ho Texas Bar No. 45055673 yvonne.ho@bgllp.com

711 Louisiana Street, Suite 2300 Houston, Texas 77002 Telephone: (713) 223-2300 Facsimile: (800) 404-3970

-17- OF COUNSEL:

LLOYD KADISH & ASSOCIATES, LTD.

Lloyd A. Kadish Illinois Bar No. 01378767 LKadish@aol.com

345 North Canal Street, Suite 901 Chicago, Illinois 60606 Telephone: (312) 559-9181 Facsimile: (312) 264-0470

ATTORNEYS FOR PETITIONER FOREX CAPITAL MARKETS, LLC

-18- CERTIFICATE OF SERVICE I certify that a true and correct copy of this Petition for Review was served on the following counsel of record by the Electronic Filing Service provider on the 17th day of February, 2015, addressed as follows:

J. Mitchell Little mitch.little@solidcounsel.com Charlene C. Koonce charlene.koonce@solidcounsel.com SCHEEF & STONE, L.L.P. 2601 Network Blvd., Suite 102 Frisco, Texas 75034 Counsel for the Receiver

Robert Coleman Robert.Coleman@WilsonElser.com WILSON ELSER MOSKOWITZ EDELMAN & DICKET, LLP Bank of America Plaza 901 Main Street, Suite 4800 Dallas, Texas 75202 Counsel for Weaver & Tidwell, L.L.P.

Scott Palmer scott@scottpalmerlaw.com SCOTT H. PALMER, P.C. 15455 North Dallas Parkway, Suite 540 Addison, Texas 75001 Counsel for Brian Hinman

/s/ Yvonne Y. Ho Yvonne Y. Ho

-19- CERTIFICATE OF COMPLIANCE This petition complies with the length limitations of TEX. R. APP. P. 9.4 because this petition consists of 3,974 words, excluding the parts of the brief exempted by TEX. R. APP. P. 9.4(i)(l).

-20- NO. _________

FOREX CAPITAL MARKETS, LLC, Petitioner, v. KELLY M. CRAWFORD, RECEIVER, Respondent.

APPENDIX TO PETITION FOR REVIEW

OF COUNSEL: Christopher H. Rentzel (Application for admission Texas Bar No. 16785500 pro hac vice forthcoming) Kevin T. Schutte Texas Bar No. 24033050 Lloyd A. Kadish BRACEWELL & GIULIANI LLP Illinois Bar No. 01378767 1445 Ross Avenue, Suite 3800 LLOYD KADISH & ASSOCIATES, LTD. Dallas, Texas 75202 345 North Canal Street, Suite 901 Telephone: (214) 468-3800 Chicago, Illinois 60606 Facsimile: (800) 404-3970 Telephone: (312) 559-9181 christopher.rentzel@bgllp.com Facsimile: (312) 264-0470 lkadish@aol.com Yvonne Y. Ho Texas Bar No. 45055673 BRACEWELL & GIULIANI LLP 711 Louisiana Street, Suite 2300 Houston, Texas 77002 Telephone: (713) 223-2300 Facsimile: (800) 404-3970

-21- APPENDIX

Tab

Client Agreement between Forex Capital Markets, LLC and Revelation Forex Fund, L.P. (R.821-38) .................................................................. A

Trial Court’s Order denying Forex Capital Markets, LLC’s Motion to Dismiss for Improper Venue and Lack of Jurisdiction, and in the Alternative, Motion to Compel Arbitration, signed on March 7, 2014 (R.1070-71) ................... B

Court of Appeal’s Opinion and Judgment, issued on December 31, 2014 .............. C

Status Report, Sec. & Exch. Comm’n v. White, Civil Action No. 4:13-cv-0383, Dkt. 74 (E.D. Tex. Jan. 6, 2014) ...................... D

Status Report, United States Commodity Futures Trading Comm’n v. RFF GP, LLC, Civil Action No. 4:13-cv-382, Dkt. 70 (E.D. Tex. Jan. 6, 2014) ........................ E

-22- #4799720.7 Tab A %FXCm CLIENT AGREEMENT

© FOREX CAPITAL MARKETS LLC

For Individual Accounts, please complete pages 7-8 & 11-13 For Corporate Accounts, please complete pages 7-8 & 11-15 For Limited Liability Company (LLC) Accounts, please complete pages 7-8, 11-13 & 16-17 For Partnership Accounts, please complete pages 7-8, 11-13 & 18-19 For Trust Accounts, please complete pages 7-8, 11-13 & 20 For ALL Managed Accounts, please additionally complete page 21 Along with a copy of identification & proof of address

And return to:

Forex Capital Markets Financial Square 32 Old Slip, 1Oth Floor New York, NY 10005 United States Fax: (212) 897-7669

18 821 currency transactions. fQ(eX Capital Markets, LLC neilller offers !he nght to offse~ nor guarantees FXCM RISK DISCLOSURE STATEMENT a market In v.tllcll to offsa~ transactions it effecl1 as a counterparty. Therefore, it may be diffioult cr This brief SIStement does nol disclose all ollha risks and other slgnlficant aspects of spol [Q(elgn lmpossiblalo liquidate an exisUng position, to assess its value, to detecmlne a fa~ prlce or to assess currency tradi119 ('For&x'). In light of U,o risks, you snou!d undenal

4. Terrna and condlUons of Spot Forex Trading . 2. Tradi119 In OTCFX Is suitable OiW lor thGSe sophlsUcated lnotltulions or parlicipantS.!inanclally You sho•ld ask lhe firm wilh v.i!loh you deal about t11e terms and condmons of the speoifie loralgn able \o v.ithstand losses lhal may substantially exceed lhe value of margins or

6. Suspension ot reslllctlon of trading and pricing relaUonsblps 3. Trader atltnowledgas thai the purchase or sale ol a c,.rancy always Includes delivery to lhe Market oon<@ons (e.g., liquidity) and/or lhe operation of the rules of certain marl.mency because or price limits or "cl~lt brealey may nol.axisl Jhe absence of an underlying reference price may make il difficult to. judge that Trader Is obligated to immediately meal such margln requirements. Failure to meal ''fa fro~' va\ue. requirernGrlto may resutt in lhe llquidaUon or any open pos!Uons with a resultant loss. FXCM also reserves lhe righlto relusEt to eecepl any crder 0( guarantee e market In whloh to offset. 6. Depotlled cash and properly . You should famlllarite you,.,all wilh lho prot&elions eC<;O!ded money or olher ptOperty you deposit 5. OTCFX buslnass Is not traded on en organized exchange and therefore does not require open· (Q( oomestlc end foreign trensaeUons, pl!llkularly In the oven! of a fum Insolvency or bankruptcy. oU\cry. !:ven lhOugb quotations or pr\oes are afforded by many computer-based component lhe extent to which you may recover your money or propeny may be governed by opecific systems, U,e quotations and prieas may vary duelo marlt do not obtain aeeess your lransacllons have been alfeclad. You should ask lha film w!lll Whi<:h you deal for details about to the trarlln9 faciliUa$. Tha Trader will be noble lo FXCM lor trades axec:uled by means of lhe the lypes of reckess available In bo!h your home jurisdiction and other relevant jtni$diclions before Treda(s password even if sud! use may be\'lrongrut. you stsrtlo trade. d) Ouollng and Exee<.JUon Errors: e. Currency risks Should q$ where there Is a neehero the ctoentls buying or setnng diredly from the market mal

Forex Capital Markets- Trading Agreement 11APR2011

19 822 resolved by FXCM In Its sole and abso!ulo discretion. FXCM reserves Ute right to v.ithhold any other 1hlrd party will reouit in tredlng profits, Client hereby acknoWledges, egreas and wilhdr~wal• until such mailers are resolved. Ally a~tion or resoiUUon slated herein sb~ll not watve understands that all Fore~ trading, Including trading done pursuant to e system, c»urso, program, or prejudice any righl• or remedies which FXCM may have ag~lnst you, your company and Its research 0( recommendations of Referring Broker or anolher th!rd party lnvoiVO$ a substenlial ri•k officer•. ell ol \\lllch ere exprms. FXCM reserves tho right to lnve•Ugate and review any account FXCM suspects of manipulation end 6. Client under.t:ends that Refen1ng Broker and many third party vendors of trading systems. withhold funds •uspected of 1>41ng dorived from such activity. FXCM reserves the right to make the courses, programs, research or recommendatlonsarenotregulatedby a government agency. nec.essary corrections or adjustmants on the acoount Involved. Aooounls thai are suspected a! manlpulaUon may at FXCM's so!e disees the right to transfer aocounls from one option to the other at any lima. Traders on bolh 9. FXCM doe• not endor$6 or vouch for Ute services provided by the Referring Broker. Since DO and NOD ax&eution may experienca w'.dened spreads and slippage under ~ain market Referring Brol dalermine a lair price or to 1. AUTHORIZATION TO TRADE.. FXCM fs authorized to putcllasa end sell OTCFX !Of Trade(s assess the exposure to ~sk. For !he .. rea601ls, those ltansll(;Uons may ln\IOive Increased risks. ai:<:ounl(s) \>lllh a eounler party bank or oopllistlcated lnsUtuUons or partroipanto In ai:<:ordance with Off-exchange lrllnsacliQns may be le$$ regulated or subject to a oeparate regulalory regime. Trader's otal or written or computer instructions. Unless lnslrueted by Treder to the conlrery In Be!Ofe you undertake such trsnssclions, you ohould familiarize yourself with opplicsblt> rules and writing, FXCM is authorized 1o &i.lledgo of the (Trading Agent), whalher on e discteUonary or non-discretiol'l'lry basis, FXCM Shall In no way be leek or eulhorily of any sucll parson ('Authorized Per&ons'). Trader •!l'ees \hal such Authorized responsible fDf reviewing Trader's choice of such Trading Agent or for r'!'laklng any Persons are authOriZed on Us behalf lo fumlsh FXCM aU data, lnlormation, Instruction$ and recommendaltons with respect thereto. FXCM makes no representaUO(Is or warrenUes ooneerning authorizations required by FXCM to perform lis services under this Client Agreement. any Trading Agent F)(CM shell not be responsible for any Joss to T111der occasioned by the action$ of the Trading Agent; and F)(CM does no~ by lmphcaUon or otherwise andoroe or approve of lite Treder authorizes FXCM to rely and act upon any Instruction, ;ulhorilation, data or information, oper;~llng melhods ofille Trading AgenL If Trader gives the Trading Agent author1\y to exercise which appear lo be given by en AuthoriZed Parson to FXCM by any means, Including inslrueUons any of ils rights over It aCCOU'll, Trader does so at his own ris!t transmilted by atectronlc means or otherv.ise, end lho production of a facsimhe Qf a document purporting to bear \he aulhor\zaUon of Treder, Trader lher01fore agrees that (i) FXCtll Is authorized B. FXCM does ~ol ronl~!ar ease; and (ftl) Trader will bear Uta risk of all unauthorized lnslrUctions, by any of iiS rlsltaUves, employees, Of agents, and Where FXCM has acted In pood faiiiJ and without lnlormallon or advice regarding FO(OX trading, FXCM shall in no way be responsible 101 any loss lo negligence, Trader willlndamnily FXCM against and save FXCM harmlesa from ~II losses, cosio, Trader rasultlng from Trader's usa of such lnlormstlon or advice. Trader understands that Rsferrlng leas, damages, expenoas, claims, suits, demands and liabilities whatsoever that FXCM mey suffer Brolcer end many third part~ vendors of trading systems, courses. programs, resoarch or or ln<>~r 011hal may be brooght agaiMI FXCM, In anyway relating to or arising ou!ol FXCM acting reeommendallons may or may not be regulated by a governrnent agency. upon, delayl"i In acting upon or refusing to acl upon any Instruction or lnlormaUon. provided to FXCM by Treder, lnctuding Improper, unauthorized or fraudulent lnstruetrons given by eny of REFERRAL DISCLOSURE Trader's employees, ag~nto ortepresenlaUves, even if such instructions were not In fact made \11th Trader's authon'ty. FXCM AND REFERRING BROKER ARE WHOlLY SEPARATE AND INDEPENDENT FROM ONE ANOTHER. THE CLIENT AGREEMENT BETWEEN FXCM AND REFERRING BROKER DOES :Z. GOVERNMENTAL, COUNTERPARlY INSTITUTION AND INTERBANKING SYSTEM RULES. NOT ESTABLISH A JOII'ff VEtmJRE OR PARTNERSHIP AND REFERRING BROI. and T.ader shall not tlmebybe given any Independent legal « contraclu~l rights with respect to sucll requirements. 3. Clientael4. II Referring Broker or any oilier third party provkles cnenl witi:llnlormatlon or advice regarding lime, at F)(CM:s sole distteUon, based upon aCCXIunt ~za, volume traded, end market condilions. Fore~ trading, FXCM shall In no way be responsible for any loss to Client resulllng from Client's use Such margin requirements may be greater or las$ than margins required by a counterparty bank. of such lnlorrnatlon 0( advice. FXCM may change margin Jequ!remenls at any time. Trader agrees to deposit by Immediate wire transfer such addiUonal mBl9ln when and as required by FXCM and will promptly meal all margin 5. To the extent Client )'las previously been led to beli~ve or belleveslhet utilizing any third per1y calls In such mode oltrenomlsslon as FXCM In .Jis ao!e discteUon designates. FXCM may el any tra~lng syotem, course, prog111m, rasearch or rec«nmendations provided by Referrlng Broker or time proceeo to liqul~ata Tredete account In accordance wilh paragraph 7 be!ow and any failure by·

2 Forex Capital Markets - Trading Agreement 11APR2011

20 823 FXCM Ia enforce Hs rig~l• hereunder shall no\ be deemed a waiver by FXCM Ia enforce Its rights accepted by FXCM Jn Its sole disO'etion lo offset the Spot currency posiUon. Treder, by noo.n of\ha there•"•'· No previous margin requirement by FXCM shai preclude FXCM Tram lnc:Jeasing lhat buoiness day before the settlement date ollha Spot correney pos"lon, oha!l provide FXCM v.\lh requirement without prior noUoe. FXCM retainslhe rig~tto limit the amounlendlor total number or a~ptob!e re-delivery or offsal instructions. lrl the absence of lime!y and adequate loslr\lctlons open positions that Treder may acqulJe or maintain at FXCM. FXCM v.1H aUernpt to executa all !rom Treder, FXCM Is authorized, at FXCM'• ebsoMe discretion, lo rollover lhe Currency positions orders, v.lllcllll may, In lis so! a dlsaelion, clloose to accept in accordanoo wilh the oral. wrilten, or In the OTCFX acrount[o) lor T! sel-off far liobiliUe.oJTreder to 4. PRIVACY POliCY. FXCM respecls each lndiY!duaTs Jlght to privacy. We value our relatronohlp FXCM whather or not FXCM ha• made advanoes In oon®Jon \lith such funds, aurenclas or olhel with roo. and we take pride in mainlaining loyalty and respect with each Individual client by property, and lrrospeeUV& ollhe number of eccounts Trader may have \loith FXCM. FXCM may In Its providing you \lith security. The provision$ ol lhls notice epply to former Clients as well as cu.- di5Ciation,. at any t!ma and from lima to tlrne. wilhoul nolioe to Tneder, apply and/or \Iansler any or current Cli911ls. all funds, osrencles or other properly ol Trsdet between any of Trade(s IICCOUlls. Treder hereby also grants to FXCM 11le rlghl to pledge, re-pledge, hypothecate, lnvosl or loon, either separately or a. Porsonat Information. Wnen you apply lor or mainta:n a live ai;COUtll \loith FXCM, wa eallect with tho property of other TradQfs, to llsell u broker or to others, any n<:urities or other property of pe~onel lnlonnallon about ~ou lor business purposes, sueh as evaluating yoor financial needs, TradO( held by FXCM s1 mergi~ or security. FXCM shall el no Ume be required I<> deiver to Trader prooossfng your requeslo end llansacUons, informing you about products end senl.aes tllat may be lila Identical property delivered to 01 purcllased by FXCM Cor any aocount or Treder. The purpose of Interest to You. and providing customer seNice. Such Information may lndode: Application of lho Landi~ Agreamonlls to allow FXCM l<> use the currencies, property, depo$llory reoalpls as Information • Information you provide to us on applications and ather rooms, sucll as your name, collateral. addrS$S, birth date, &OOial security. number, ooc:opaUon, ossets. and Income. T11111sacUon lnfonmal!on - lnlormalion about your transaelions \lith us and with· our affiliates as wall as 7. LIQUIDATION OF ACCOUNTS. In the event of (a) the death or Judicial declarellon of Information about our oarnmunlcalions with you (ExempleG Include your a~nl balances, ltadlng Incompetence of Trader, (b) lhe ~ling of a petition In banlwplcy, or a petition for tho oppolnlmenl of aeUvlly, y<>ur Inquiries and our responses).· Verification lnl'orma\lon - Information necessary to verify a raoalvar, or the Institutlon ol any Insolvency or stmnar proceeding by or against Tradar; (c) tho your Identity sueh as a passport or driVe(s license (Exsmpios also Include bacl<9r<>Und Information filing ol an ellachment agslnsteny o!Trade~s accounts carried by FXCM, (d) lnsufficlenl margin, or about you we receive !rom public reoords or !ram other entitles not affiliated -Mill FXCM). Tho USA FXCM's dotarminaUon that any collaleial deposited to protect one or more accounts of Trader Is Patriot Act requires uSioco!lect Information and toke aeUons necessary to verify your Identity. Inadequate, regardlau of cutrenl market quotations, to secure the eeooun~ (a) Tredefs fa~..-e to provida FXCM any Information requested purouant to this CUen\ Agreement or (~ any other b. About Coo~les. Coold.. are small files CQntaining Information thai a Web site uses to track Its Clrcums\a~ or developments lhel FXCM deems eppropriate for llll protection. and In FXCM's visitors. FXCM may sol an~ access FXCM cooldes on your computer, enabling us to learn vmlch oolo diocreUon, it niay lake one or molher notice To o. Security Technology. FXCM ~ses S$Cilre Soekal Layer (SS\.) anerypUon leel\nology In order to Trader, Trad~s personal represenla\ivos, heirs, exeeulors, edmlnlolta!ors, tru•lees, legatees or protect cetlain Information lhot you oubmll. This type ol leclvJology protects y011 from having yoot anigns and regardl~s of whether the owner.~hlp interest sholt be solely Tradefs or held jointly with lnf«mallon Intercepted by anyone other than FXCM while Ills being ltensmUted to us. We work others. In liquidation of Trede(s long or short positions, FXCM mey, In Hs 601• disaallon, ollsolln hard to onsUie that our webs~es era soeure and that they moat lndUsltY standards. Wo atso USB the same selllemen\ or !I may fnHiala new long or short pasiUons In order lo establish e ~pread or oUher "afeguatds such as firowells, authentication systems (a.g., passwords and personal Oll'&ddle whk:h ln FXCM'a sole judgment maybe advisable to protect or reduce ax!slifl9 ~siUOMin ]denll!ication numbeiS) end access contr~ maelhanlsms to control unaulholized access lo oyotems Trade(s aocount. Ally sales or jl\Xchaseo hereunder may be made eccord'mg to FXCM s)udgrnent end data. and at i\$ disccotion with any Interbank or other exChange market where such busine$$ Is then usually transacted oral a public aueUon or private .are, and FXCM may purchase the '1410lo or any d. Sharing Information with Gur Alliliatet. We may snare personal intormallon dasetlb~ above with pari !hereof lree from any right of redompUon. Trader will not be wsponslb!e lor debit balances our affiliates for busine$5 purposes, sueh as, but not limited to, serviCing Client aeeQU11e and dtrecUy resu!Ung !ram lta!llng aeUvity. lnf«mlng Clients about now products and services, or to aid In tho trading activity or lhe oornpany, Its affillatas, or employees, and as permiHed by applicable law. Our affiiiales may Include 8. SETILEMENT DATE OFFSET INSTRUCTIONS. FXCM In lis sola and absolute direetron m~ companies controlled or owne

e. Sharing lnlonnellon with Third Parties. FXCM does not diselooe your personal Information to 9. CHARGES. Trader shall pay such brokerage, commission and special servioa end ell Other lhird partles, El)(cept as ·described In lh!s Polley. Third pariy diselowras may lndude s~allng such charges (including, without limitation, markups and markdowns, statement chargas, IIIIo aooount lnf01maUon w!lh non-afliliated companlesthatparform support servloes ror ~our Bca>UOI or facilitate charoes, order cance!laUon cllmges, aeeQU11 lransler charg&s or other ~argos), fees jlneluding, your ll'ensaooons with FXCM, Including lhOso that prOY!do professional, legal, or aoc:oun~ng advice without nmilaUon, leas imposed by any interbank agency, bank. oontract marke\s 01 other regulatory lo FXCM. Non-affiliated eornpanlea lhal assi$1 FXCM In providing services to you ere requifed to or self-regulatory organizations) arising out of FXCM providing •ervices hereundei. II T1ader uses maintain tile wnftdenUality of such inlormafloo to the e)llentthey ret$ive It end to use your personal FXCM's "Active Trader" platform, Trader consent• to pay a commission charge at a rata of n~ tnfoonallon only In the course of providing ouch services and orly for the pusas that FXCM {$50) USD per million base c:urreney ltadad, per side. FXCM may chango Its commission, charges, dictates. Additionally, In order Ia wmply willllhe Cornmodty Futures Trading Commis&lon ('CFTC') ancffor Ieos without ~lee. Trader agrees \a be fiable to FXCM for Interest on amounts duo from regulations, FXCM Is obligated to regularty lransmll copies of all aocount sla\aments of &rtf Client Trader lo FXCM alan Interest rate equal to three {3) percentage points ebo'll' the Ilion prevaHing who Is a related peraon of a Retail Forox Counterparly, as defined In Sa ol the Ralail F; Counlorparty, and any tela~va Of FXCM In !he event Trader Instruct• FXCM to lransler open posmons, moneys, and/or properly or spouse ol any Of \he [orego!ng persons, or any relative O[ suc!J spouse, v.ilo shmes \he same llama Tlade(s acx:oont to another lnsfituUon. If there arellQ foiled ord""' In your account for at least one n any of !he foregoing persons. Furthermore. we may also disclose yout personal Information to {1) year, you W.~ be subject to a dormant a<:countadm!nlsVatl\18 reo (lho '"Fee'), Th• Fee win be third parties to rutfill your Instructions or pursuant to your expre•s oonoenl We want you lo know equal Ia lha Iasser of $50 or the remaining balance In your aooounL Yo~ will be subject \o lha Fee that FXCM Will not oeH your personal information on a yearly basi• \hereafter~ the condillon• olaled above..., mel. If you are esse•sed \he Fee end your accounlbalance becomes zero (0), your eC, we may disclose personal Information to cooperate with regulatory eulhoiiUas and few of aOIXlUntS for Trader shall be deemed correct end shall be conclusive and binding upon Tradei H enforcement agencies to comply -Mill subpoenas or other official requ&Sio, end as neoessary to nol objected to Immediately upon reoelpl and confirmed In wr!Ung within (1) day after lransmtttal Ia protect our rights or property. Except as descciOod In lhls privacy policy, we will not use your Trader by posUng on tho Interne~ or othervrise. Margin calls shall bE> <:Onc:iuslve and blriding unless personal Information for any olhar purpa50 unless we deserioa how auch information Will be uoed al objected to Immediately In v.1iUng. In lieu of sending trade confirmation via paola! mail, FXCM witt lha Ume you disclose lito us. or we obloln your permission. provide Treder lnlemal access to view his eocount at any lime \loith an online login. Wrillen objections on Tradef's part ohall be direoled to FXCM ellis ~orne office located at the rrn>S! '""""I g. Opt Oul You are not requirelved by a l

3 Forox Capital Markets ~ Trading Agreement HAPR21l11

21 824 12. FXCM RESPONSIBILITIES. FXCM \\111 nol be responsible for delays In lhe transmission of Olliw pursuant to the notice requirements of this Cl!ent Agreement Trader agrees to lndermlfy Ciders due to a breakdown or failure of lrsnsmlsslon ()( oommunlcatlon racmues, electrical power end hold FXCM harmless !rom ell domagas or liabllily resulting from Trade~& failum to lmmedfalely oulage or for any olher cause beyooo FXCM'a oonlrol or anUcipaUon. FXCM shall only be liable for nolify FXCM's Compflence Officer oleny of the occurr81\ces ••!erred to herein_ All notices required Us actions direclly al!ribulabte to negligenoe, willful default or fraud oo lhe pall of fXCM. FXCM under this secllon shall be sent to FXCM et its home office. shall not be liable for losses artsing from the default olony agent 01 any olher party used by FXCM under this Client Agreement. 19. CREDIT. Trader authorizes FXCM or agents acllng on behalf orFXCM to lnvesUgale Trad~s creoil sleno!ng and In connection therewith to oontact such banks, fonenclal I~UtuUons Slid ctedit 13. CURRENCY FLUCTUATION RISK H Trader difetl• FXCM to enler Into any a11rency ager>das as FXCM &hall deem approprialo lo verify Information regarding Trader. Trader lurlher lrens~on: (e) any profit or loss arising as a resu1\ of a nuctualio!l In lha exchange rate affecting aUihorixes FXCM to Investigate Tradefs current and past Investment activity, and In connecllon such ourrenoy will be en\ll"ly for Trade~& aocount and rtfk; {b) a!llnl\ial and sub5equent deposna therewith, to contact sucll futures eommlsslon merOsas shall be made fn U.S. dollare, in $UCh amounts as FXCM may In Its sole compliance data center• as FXCM shall deem appropriale. Upon

14. RISK ACKNOWLEDGMENT. Trader acknowledges that lnvas\rnenls In leveraged aoo non- 20. JOINT ACCOUNTS. (a) 11 lhls ae.oountls held by mom lhan one (1) person, all o! lha Joint leveraged transactions are speculative, Involves e high degree of ~sk. and Is apj>fopriole only for hOlders are Jointly aoo 5everally nabie to FXCM for any and all obligatio~ arising out of transacllons persons who esn assume risk of loss In Oll any tax, liability, penally, or loss under any present or future laws or olherwise. The asle\e(s) of any of the Cliant.s 'Nho shall have died shall belleble, eoo tho eurvivor{e) shall oonlinua 15. TRADING RECOMMENDATIONS. (a) Trader ael the $Ub}ecl cl market reoommendallons lumlshad to Trader, and lhatthe mallie! position or FXCM or any tud1 officer, (d) If this ac:<:ount I• held by the parlies as )Oint tenants with rights of &urvlvorohlj>, then, upon director, affiliate, assoc!ole, stoefnary or non-discteVonory basis, FXCM shall In 21. NO WAIVER. No provision of this Client Agreement may be waived unless tho waiver is In "" way be responsible for reviewinll Trade(& choice of &ud1 Trading Agenl nor making any writing and signed by both Trader and an authorized officer of FXCM. No waiver ollhls CHen\ recommendations with re~t thereto. Trader under$\ands that FXCM makes no warJanlles nor Agreement may be Implied from any course of dealino between the parties or from any laill.rfesentaUons eonceming lhe Trading Agan~ that FXCM shall not be responsible lor any lou to FXCM or its agonls to ess&rl its rtghts under this Client Agreement on any cxx:aslon or serias of Trader occaslooed by lhe actions of \lle Trading Agent end Uhal FXCM do&s no~ by fmplicai!M or oo::aslons. otherwise, endorse or epprove of !he operating methOds of the Trading AgenL lf Trader gi>'es Trading Agent aulhority to exercise eny of il.s rights over Tradefs accounl(s), Trader underotands 22. GOVERNING LAW AND JURISDICTION. This Client Agreement. and tho rlghls aoo that Trader does so at Trader's own rl•lr. obllgaUorts of th~> parties hereto, shall be {IOVemed by, eonstrued and enforced In all respects by the laws or lho Slate of New York, where FXCM"s principal order exe¢uUon facifiUes are located, 16. TRADER REPRESENTATIONS AND WARRANTIES. Trader tej>fosents PAd warrants that (a) and mthOul regard to laws that would otherwise apply under applicable dlolce of law principles. Trader Is of sound mloo, legal ego aoo legal competence; and. {b) No persoo other than Trader has or \\ill have an Interest In Traders .sOoount(s); and, (c) Trader hereby warrants that regardless of 23. BINDING EFFECT. This cnent Aweernenl shall 1>0 conUnuo11s and shall cover, tooMdualty any subsequent detarmfnaUon to the contrary, Trader Is suitable to trod"a OTCFJ<; and (d) Trader is and collectively, an ecoounls or Trader at any Ume opened or reopened with FXCM irr~&petlive Of not now en employee of any eMchenge, any corporation In wbld1 any exchange owns a ma]orily or any dlange or dlanges sl any Ume in lhe personnel of FXCM or i\$ •~•~. assigns, or the capital stock. any member o! any exdtange and/or firm reglslered on any ox of torminalion, or at any lima whatsoever by FXCM upon the tr;onsmlttaf of written 'lQtloa or Trader's current financl.el condition. The Tmder represents and warrants that in determining the lenmfna\ion to Trader, provided, that such lerminalion shall nol affect eny tmnsactiom previously Treder's Nat Worth, A5•ets end Liabilities ware carefully ealeuletad then Uabllitias were subtracted entered Into end sbail not relieve eilher party of any obligations set out in this Client 1\greernenl nor from Assets to determine the value that the Trader ha• inciuded In lhe r•nan<:iaf lnformauon aa Not shall illelieve Trader of any obligations arising out of any deftclt balance. Worth. The Trader rePfesenls and warrants lhet In determining lhe value of Assets, the Trader lnciu~d cash and/or cash equiv01anls, u.s. Government end Marirovislona of lhls Client Agreement ~nd. any other agreements between FXCM end Trader. 18. NO GUARANTEES. Treder acknowledges lhdlons: Sy•tem malfunclion, $quiprnenlfeilure (whether made by anyone ooncerning Trad~s aooounl that differ from any statements Trader receives from Trader's or FXCM's equipment), system Interruption or system vnavaOability; (d) Delay: Delays, FXCM must be brought to \he eltenUon of FXCM"s Complianee Olliw lmmedilllely In writing. fa~ure 01 errors In lmplemonUng any lnslrucllon; and {e) Information: lnaOC\Kate or Incomplete Trader understends thai Troder must authorize every transacllon priOI to Its exe¢ion unless tnstrucUons received by FXCM from Trader_ 1\dditionally, Trader agrees to Indemnify and hold Trad~r has delegated discretion to another party by signing FXCM"s limited pow"! or attorney FXCM. Us am!lales, employees, agents, success<>rs. ar\d essfgns harmless from and against (LPOA), and any disptrted lransactions must be brought to the allenUon of FXCM"s Compliance ell liabilities, losses, damages, oosls aoo 8'1'9nsu, Jnelud!ng •Uorn&ys leas resulting from use of

4 Forex Capital Markets- Trading Agreement 11APR2011

22 825 p~ogrammable lrad!ng systems, whether bulit by Trader himself or by any third party and executed ltlsth&cllent's respon~ibllily to find aut aU necessary lntormallon aboula Trading Agent prior on or u$ing the FXCM Tras and olher properly Of Trader as specified In Paragreptl S ot lila Trader 32 Old Slip, 10"' Floor, New York. NY 10005 USA; the tenm 'Tradet shall mean the party (or Agreement. . patlios) ex~ng the CUent Agreemen~ and the term 'Client Agreement' silall lnc:lllitratlon (as provided for In the $«se letms end conditions lor any modifications and agrees to be bound by EMAIL ACKNOWLEDGMENT · same, Trader may not amend lhls Client Agreement unless such amendment Is In wrillng and signed by bo\11 Trader end an aulhorl•ed ollioer or FXCM. No oral agreements or lnslruelions to the Client ael is a cllangeln con!lary &hall be rewgnld&Jstands that.FXCM Is Qn!y proviunts will havalradas exetuted via FXCM accounts and tracflng lines. Client II Client does not ~sh to have acoount lnlonnalion delivered electronically as dosccibed In All clienlaca>Unts will hav1> margin requirement• established by lhe fXCM deaRng desK. this Policy, Client must canted FXCM via e-mail at Cllfllplianee@fxcm.com or send e request to: Tt1a au10111ated FXCM trading eystem will distribute profits and losses accordingly lo all client FOI8X Capital Markets LLC Attention: Compliance, Fioanc!al Square. 32 Old Slip, 10th Floor, New aooounts. York. NY 10005. Please bs advised thai once FXCM receives such lnslruction FXCM will not be FXCM may o$leblish ru1es and provisions lor client eocounts, Including but not limited to able to servlee Client's aet:OURtan~ will dose any open and funded acrounls lltal Client has. minimum aCCCJunl $I~.,, investment time period, c:ommlulons end lncenlive lees, or any other financlalarrangemenls. ARBITRATION AGREEMeNT Ills the client's responsibility lo find out all necessary informaUon about FXCM and ensure that all atl'angements ere discussed and dearly understoOd pc1or to eny lra~ing aclivily.

5 Forax Capital Marllels- Trading Agreement 11APR2011

23 826 BY AGREEING TO THIS ARBITRATION PROViSION, TRADER MAY BE WAIVING CERTAIN keep yOIX pas•WOld(s) and ather coofldenUallnformaUon secret and ensure thatlhlrd partles do not RIGHTS, INCLUDING THE RIGHT TO A JURY TRIAL. TRADER NEED NOT AGREE TO THIS obtain aecess to your account or your portable devica, You Will be oolely liable ror any end all ARBITRATION PROVISION IN ORDER TO OPEN AN ACCOUNT WITH FXCM. tredeo executed by means of your pauword(al even II such uoa may be wrongful. FXCM may rely on s!l ordeiS and lnstrucUons submitted using your password(s) witho\JI. furlher Inquiry ot Tt~det agrees end, by opening one or more accounts for Trader, FXCM also agrees, lhat any end verification. ell dlopu\es, conllov.ersioa, ot claims arising out of this Ctient Agreement, or the relaUonshlps ot activities eontempleled lhereoy, Including \V!lather or not any sud\ dispute, cooiiOversy, or claim I• 3. You agree the! nellher FXCM nor Its third pstly servtea ptovlderswill belloble for the re~obllily or arbitrable, shall be resolved by an ArbilreUoo Panel oeiecled by the National futures AssodaUon accureey of the information· made available via Mobile TS II. Such Information ts reasonably ('NFA'), pursuanl to tho NFA's Code of Arbilretlon. The award ollhe NFA Arbilretors, or of lh8 believed to be accurate end Umely; however, there are no explloll or lmpilal wananlies of aocuraey majOrity of them, &hall be final, end judgment upon the award may be entered In any court ol or timeliness In connection lherewilh ot eonllnoed a~eilability of this Information, and such competent jurisdietlon. lnlormat1011 ahould not be relied upon as ouch.

FXCM MT4 POWERED BY BOSTON TECHNOLOGIES LETTER OF 4. You agree that es betmen FXCM Trading Slaiion and Mobile TS II, the FXCM Trading Stellonls tha primary means relied upon for ell order and trade related nNiea• Including bul nollimlled to DIRECTION cooflrmetrons, account balances, margin balenoes, price quotes, account oletus, end e.c:oounl details. In the event or any lnoonslsteneles between FXCM Trading StaUon and Mobile TS 11, The fallov.ing addiUonal terms apply to clients utitizlng FXCM MT4 Pawered By Boston FXCM Trading S!ation $hall govern. Technologies ('The Program'~ If cnent utlli~• The Progrem, Clilll1t agrees to the eddi~onallerms and au~s FXCM to ecteceordingly by signing this CUentAgreement. 5. You agre&lllal you will not rely on the Mobile TS II as your primary moans or pladng trades. You agru that the Mobile TS n Is being provided solely as a convenience end nol as en alto maUve to 1. Client wishes to utilize The Progl'em to axeCIJte trades end to direct trade ordere end hde details FXCM Trading Slation or lelephotllng tho FXCM trading desk. to FXCM. Clienl$ utiHzlng Tho Program will not be eo~ ltades ot~r$ and tradt details di1eelly with F){CM, but relh$1' will be Oi!

(a) Client folly understends lhatlhe llade orders and !Jade detail• are geoarated by The Program R!ek Dlsclosura: and not br FXCM end that FXCM's responsii>Uity Is to use commereialty reasonable ef(ortsto enter orders pursua nIto lhe lrede orders and trade del ells generated by The Program snd as recity Yle Mobile TS II and FXCM Shall not Progrem will be provided by The Program provider end not by FXCM. be respooslble for eny lossas or missed opportuniUes Incurred by you due to lh8 delayed or non· delivery of any order or lnslruc:tlon 'lis Mobile TS II. (c) If more than one FXCM dient Is using the same system or service as The Program, Client ac;lulov.1ecfgas that FXCM may enter block orders to enheflCII order ""ewllon, In v.tllch case a fa!r (b) You agree that FXCM shall not be responolble lor any fees associated with your use of Mobil& end systematic fill allocation method will be employed. Client understands and •cknowlediJ•s lhat TS II should you Incur eny fees from your Internet service provider, phone •ervtce provider, or any FXCM v.l~ onlY be responsible for using Its commercially reasonable efforts to exeeute, In a Umely other •ervtc:e provider used to access Mobile TS 11. fashion, the llada ordet> and trade details generated by The Prooram. FXCM &hall not be responsible for any error or maffunctioo of The Program, mechanical or communication line lailura, {c) Online trading and trading via portable device, no mattar how convenient or effiaen~ do not system errors, data feilure ot any other eeus~ beyond its conllol. CliGfll acknowledges til;! I F){CM reduce lhe rtsl<• essodeled with foreign exchange trading. FXCM Will no! be liable to you or eny can accept and execute orders ooty If actually received or generated end then on a •not he1d' basis tllird party for tile accuracy or timeline"" or any end. elllnformaUon provided Ilia Mobile TS fl or for (I.e. FXCM ollall not be held rospoo•lble for tho execullon of !he order ot the plica indicated or any and all actions on such Information. Otherwise). IF YOU HAVE MlY DOUBTS AS TO WHETHER AN ORDER PLACED VIA MOBILE TS II HAS {d) Client has had the opportunity to ask questions on now Client'• aooount will be handled and BEEN EXECUTED, YOU SHOULD NOT PLACE ADDITIONAl ORDERS VIA MOBILE TS II; aclOt1$lble for the petformanee of The P1ogram or lrading losses In Client's eccoul\l. EXPf;RIENCING TECHNICAL PROBLEMS.

{e) FXCM may acl upon lh8 authority given by this letter of direction unlit Client revokes the authority by 'M'illen notice addressed end edually delivered to FXCM, In accordanco with tile BASIC Disclosure Instructions end details on FXCM's v;ebsllo. FXCM may also terminate the eu!horizetlon over The Program at any time lor any re..on In Its sole discretion end will provlda Client wilh written notice. The National Fu\uret Assoelallon keeps records or ell format proceeding• against Future. Client shell be responsible for .any open lots In Client's eocounl at the lima Tho Program Is Commission Merchants. The lnformaUon of ihele proceedings een be found at terminated. Client &hall pa1mit FXCM to execute olfsalllng orders for any open tots In Client's bllo·lfww nfa fu!ures orglbaslcoel( a~nl at the time the letter of direction Is terminated.

{I) Clitll11 agrees that, In the absetJce or wll~ul or wanton misconduct, neither FXCM nor any of its officer•. directors, employees, CQO$ultants, agents or amnales wiff be lleld liable for any act c)r omission In the cour&e of or In CQMeetion with Client'a partlelpstion In The Prog

FXCM Mobile TS II Trading System (hereinafter referred to as "Mobile TS II") Terms of Service and Risk Disclosure Te:ooa or Service:

II is slrongly RECOMMENDED thai you femiliartze yourself with the functionalilles or Mobile TS II by using (he demo version prlor to managing your live account Yla a portable device.

1. Mobile TS II I• comprised of mobl!a ~acling softwate provided exclusively lhtoul)ll public tetecommunlcaUon oelworlOriance a delay In pr1oe quoleUon or an lnabllily lo trade caused by oelworlt ctrcuil trsnsmlss!on problems that may arise between you and any Internet service pro"lider, phone sel\'iee provider, or any other service provider or related to any olher problemt outside the direol control of FXCM.

2. FXCM will end6avor lo u•e oornmerclelly reosoneble elforb to enouretha seeunty of Information and ~ansacUons conducted via Mobile TS IL However, you aru obligated and solely responsib!e to

Forex C11pltal Markets- Trading Agreement 11APR2011

24 827 RISK DISCLOSURE STATEMENT

OFF-EXCHANGE FOREIGN CURRENCY TRANSACTIONS INVOLVE THE LEVERAGED TRADING OF CONTRACTS DENOMINATED IN FOREIGN CURRENCY CONDUCTED WITH A FUTURES COMMISSION MERCHANT OR A RETAIL -FOREIGN EXCHANGE DEALER AS YOUR COUNTERPARTY.

BECAUSE OF THE LEVERAGE AND THE OTHER RISKS DISCLOSED HERE, YOU CAN RAPIDLY LOSE ALL OF THE FUNDS YOU DEPOSIT FOR SUCH TRADING AND YOU MAY LOSE MORE THAN YOU DEPOSIT.

YOU SHOULD BE AWARE OF AND CAREFULLY CONSIDER THE FOLLOWING POINTS BEFORE DETERMINING WHETHER SUCH TRADING IS APPROPRIATE FOR YOU.

(1) TRADING IS NOT ON A REGULATED MARKET OR EXCHANGE- YOUR DEALER IS YOUR TRADING PARTNER WHICH IS A DIRECT CONFLICT OF INTEREST. BEFORE YOU ENGAGE IN ANY RETAIL FOREIGN EXCHANGE TRADING, YOU SHOULD CONFIRM THE REGISTRATION STATUS OF YOUR COUNTERPARTY.

The off-exchange foreign currency trading you are entering into is not conducted on an interbank market, nor is it conducted on a futures exchange subject to regulation as a designated contract market by the Commodity Futures Trading Commission. The foreign currency trades you transact are trades with the futures commission merchant or retail foreign exchange dealer as your counterparty. WHEN YOU SELL, THE DEALER IS THE BUYER. WHEN YOU BUY, THE DEALER .IS THE SELLER. As a result, when you lose money trading, your dealer is making money on such · trades, In addition to any fees, commissions, or spreads the dealer may charge.

{2) AN ELECTRONIC TRADING PLATFORM FOR RETAIL FOREIGN CURRENCY TRANSACTIONS IS NOT AN EXCHANGE. IT IS AN ELECTRONIC CONNECTION FOR ACCESSING YOUR DEALER. THE TERMS OF AVAILABILITY OF SUCH A PLATFORM ARE GOVERNED ONLY BY YOUR CONTRACT WITH YOUR DEALER.

Any trading platform that you may use to enter off-exchange foreign currency transactibns is only connected to your futures commission merchant or retaH foreign exchange dealer. You are accessing that trading platform only to transact with your dealer. You are not trading with any other entities or customers of the dealer by accessing such platform. The availability and operation of any such platform, including the consequences of the unavailability of the trading platform for any reason, is governed only by the terms of your account agreement with the dealer.

(3) YOUR DEPOSITS WITH THE DEALER HAVE NO REGULATORY PROTECTIONS.

All of your rights associated with your retail forex trading, including the manner and denomination of any payments made to you, are governed by the contract terms established in your account agreement with the futures commission merchant or retaJI foreign exchange dealer. Funds deposited by you with a futures commission merchant or retail foreign exchange dealer for trading off-exchange foreign currency transactions are not subject to the customer funds protections provided to customers trading on a contract market that is designated by the Commodity futures Trading Commission. Your dealer may commingle your funds with its own operating funds or use them for other purposes. In the event your dealer becomes bankrupt, any funds the dealer is holding for you in addition to any amounts owed to you resulting from trading, whether or notany assets are maintained in sep;=1rate deposit accounts by the dealer, may be treated as an unsecured creditor's claim.

(4) YOU ARE LIMITED TO YOUR DEALER TO OFFSET OR LIQUIDATE ANY TRADING POSITIONS SINCE THE TRANSACTIONS ARE NOT MADE ON AN EXCHANGE OR MARKET, AND YOUR DEALE:R MAY SET ITS OWN PRICES.

Your ability to close your transactions or offset positions is limited to what your dealer will offer to you, as there is no other market for these transactions. Your dealer may offer any prices it wishes, and it may offer prices derived from outside sources or not in its discretion. Your dealer may establish its prices by offering spreads from third party prices, but it is under no obligation to do so or to continue todo so. Your dealer may offer different prices to different customers at any point in time on its own terms. The terms of your account agreement alone govern the obligations your dealer has to you to offer prices and offer offset or Jlquldaltng transactions In your account and make any payments to you: The prices offered by your dealer mayor may not reflect prices available elsewhere at any exchange, interbank, or other market for foreign currency.

7 Forex Capital Markets- Trading Agreement 11APR2011

25 828 (5) PAID SOLICITORS MAY HAVE UNDISCLOSED CONFLICTS

The futures commission merchant or retail foreign exchange dealer may compensate Introducing brQkers for introducing your account in ways which are not disclosed to you. Such paid solicitors are not required to have, and may not have, any special expertise in trading, and may have conflicts of interest based on the method by which they are compensated. Solicitors working on behalf of futures commission merchants and retail foreign exchange dealers are ·required to register. You should confirm that they are, In fact registered. You should thoroughly .investigate the mann~r in which all such solicitors are compensated and be very cautious In granting any person or entity authority to trade on your behalf. You should always consider obtaining dated written confirmation of any Information you are relying on from your dealer or a solicitor In making any trading or account decisions.

FINALLY, YOU SHOULD THOROUGHLY INVESTIGATE ANY STATEMENTS BY ANY DEALERS OR SALES REPRESENTATIVES WHICH MINIMIZE THE IMPORTANCE OF, OR CONTRADICT, ANY OF THE TERMS OF THIS RISK DISCLOSURE. SUCH STATEMENTS MAY INDICATE POTENTIAL SALES FRAUD. .

THIS BRIEF STATEMENT CANNOT, OF COURSE, DISCLOSE ALL THE RISKS AND OTHER ASP~CTS OF TRADING OFF-EXCHANGE FOREIGN CURRENCY TRANSACTIONS WITH A FUTURES COMMISSION MERCHANT OR RETAIL FOREIGN EXCHANGE DEALER. ,

I hereby acknowledge that I have received and understood this risk disclosure statement.

8 Forex Capllal Markets- Trading Agrcemnnt 11APR2011

26 829 PROFITABILITY ANALYSIS

i ::::x;?\'i;·;. ,\:,, . L::>::;·yt;;;ni·::'.\;\::·. Q2 2010 Q3 2010 Q4 2010 Q1 2011 % Profitable 23% 23% 23% 27% % Unprofitable 77%. 77% 77% 73% Total Accounts 17,771 15,023 18,362 20,223

PAST PERFORMANCE IS NOT NECESSARILY INDICATIVE OF FUTURE RESULTS

Over 180,000 tradeable accounts trade through trading platforms offered by FXCM Holdings LLC and its consoHdated subsidiaries Forex Capital Markets LLC, Forex Capital Markets Limited, FXCM Asia Limited, FXCM Australia Limited, ODL Securities Limited, and ODL Securities K.K. Japan.

9 Forex Capital Markets- Tradll1g Agreement 11APR2011

27 830 NO DEALING DESK DISCLOSURE

THE FOREIGN CURRENCY TRADING YOU ARE ENTERING INTO IS NOT CONDUCTED ON AN EXCHANGE. FXCM IS ACTING AS A COUNTERPARTY IN THESE TRANSACTIONS AND, THEREFORE, ACTS AS THE BUYER WHEN YOU SELL AND THE SELLER WHEN YOU BUY. THE PRICES FXCM OFFERS MIGHT NOT BE THE BEST PRICES AVAILABLE AND FXCM MAY OFFER DIFFERENT PRICES TO DIFFERENT CLIENTS.

ALTHO.UGH FXCM IS THE COUNTERPARTY TO EACH OF YOUR TRADES, IF YOUR ACCOUNT(S) IS TO BE TRADED UNDER A "NO DEALING DESK" MODEL FXCM LIMITS RISK TO ITSELF BY IMMEDIATELY HEDGING (OFFSETIJNG) THE TRADES AND POSITIONS IT ENTERS INTO WITH YOU 1-FOR-1 WITH ONE OF SEVERAL BANK MARKET MAKERS. AS A RESULT, FXCM DOES NOT PROFIT WHEN YOU LOSE MONEY ON A TRADE. RATHER, FXCM IS COMPENSATED BY MARKING UP THE PRICE IT RECEIVES FROM THE BANK MARKET MAKER.

IN SOME CIRCUMSTANCES FXCM MAY ELECT TO REMOVE YOU FROM "NO DEALING DESK" MODEL. FXCM WILL NOTIFY YOU AT THE TIME THAT IT DOES SO. IN SUCH A SITUATION, YOU SHOULD BE AWARE THAT FXCM MAY MAKE MORE MONEY IF THE MARKET GOES AGAINST YOU. ADDITIONALLY, SINCE FXCM ACTS AS THE BUYER OR SELLER IN THE TRANSACTION, YOU SHOULD CAREFULLY EVALUATE ANY TRADE RECOMMENDATIONS YOU RECEIVE FROM ANY OF FXCM'S REFERRING BROKERS. FXCM ITSELF DOES NOT PROVIDE INDIVIDUALIZED CLIENT TRADE RECOMMENDATIONS.

10 Fore:x Capital Markets -Trading Agreement 11APR2011

28 831 FXCM Forox capilnl Markots, LLC Ffnoncl~t Squaro

%FXC:m IILild•l NYSE~ 32 Old Slip 10th Floor New Vorl<. NY 1000S USA Tel. 212 897 7660 Fax. 2. f 2 8977869 E-mail; 'C~dmln@fxcm.com www.f~cm.com

lhelnfonnalion below must be ct~mpleted In FULL. . . . ACCOUNT A~PLICATION .. . · _ Aa:c!ll'll R.@oklr.IUon rpJe.asac:hE:ckOf'l'3'onlyl: Qlnd"....ldoal~ Ostotlda:d FulllCAcroont 0EOR0GaP{Juso(],pyQQro{]c.a.o· QJo!nl Ao:x>-=..2::::5:::0904=2::..__ _ _ _---'

last (Sur) Namo: Firol (Given)Namo: t.foddl;>ll""~· L~sl {s..} ......~; FiJsl (Gr,.,.} Hwo: t.,bddloName;

White Kevin Geoffrey I' I Gend¥, 0Malo OremaiO Gen-~r. 0Malo Or....,. f.lathats"""'' 0s:ngio Ot.IOII"""' Ma.taiSIGtus: Os;,:qe 0Maqted

I l l j i I 5 Pr;mory Aceounl Holdet's Uomo Addre .. (PIUs&all>e~ proof of r••lden

l ll 2400 Dallas Parkway Suite 540

Plano

214-676-237 4 972-398-0013 214-676-2374

11 ;~ l~ Forex Copllal Markets- Account ApplicaUon 11APR2011 NewApp

29 832 s Jolnl A

c~ Sialo Po~a'IZip COO;o Coo/Illy

Hom~ T~loptlone no. Home Fax no. lloblloPI>Qt1ono. ' ! 7 Primary Aco:<>U!\1 Hoklt~o Emplo;ment Oel;>Rs l:jEmpb-JO

I l,lnen\pbyed (II unomplo-,ed, pious r6'oiew Ul9 'High Rls~l..-lnlont HOII«r" on PaQO 5) i Namo of r.un-ent Empb,'«(Re

2400 Dallas Parkway Suite 540 Plano, TX 75093 972-398-0010 i II Joint AcCount Ho!Ws EmploymoniO•to!ls 0Em~'ed QS.~-emp'oyed r:JReli"e\.:mp!

llu

! ' i ~ Bonldog lnlomullon . . : ''I"" lntond on "'i!J'odta'oing lun.!s vi:l Wok wi'o, you MUST oo.-nplalelhO banl<\ng lnloml:;tion seclloo in

Community Trust Bank 9456 Highway 121 Frisco, Texas j 75035 Bali< Account Noold bQ samo B$ ~ """"'(s)opp<>oritlg on 11\l>l\ppklali>n),

20333535 Revelation Forex Fund, LP i SWFf Cod• 01 ABA Nu-'nb« p.,_, IO COtl!&ol at Bri

111102758 Dawn Atencio FINANCIAL INfORMATION iForJI)InlAccounl, please use combined financl~i lnlonnatlon; For Corporate t,ccounts, please usol~~ ccP,pany's finorciol inlormal\on) 1. 'Moo\ i> )'OUt total estmote$1inll"l>~ 0Uodor s2s.ooo D $25,ooo-$.:9,m 0 $50,QI)O.S(I!),m I. Am~.bere!Otl)'oomm~ty~~ · DYes 0110 r:J$100.000-$249,~ D $250,000-$1,000,000 0 0\'tt SI.9QO,OOO KYes, Ploas&Ust: _ _ _ _ _ _- - - ; - - - - - - - - · {If ywr snntt3l h::cirlels ,.,.than S25.000, p:oase te-iiowtllo 'High Risk lnvHlmenl Nullce· on Page 5.1 2. N1 Assoda!edpmon (AP) will> artJ olr\erCFrC orii~Aregislerod ffm? DYe• g]llo 2. Net \\Orth (ossels m.-....·lf;)bs;t;es)1 0 Under S2S.OOO D S25,000-$49,WI 0 $50,000-$99,999 HYfs, r"aselist----------7------~ Ostoo,ooo-s2<9,m D ~250,0»-st,ooo,ooo Ost,ooo,ooo-Js,ooo,ooo []ss.oo::t.ooo-sto.ooo,ooo IZ!O.er$10.000,000 (If- noI ..~ losolist - - - - - - - - - - 7 - - - - - - - · lloUce' on Pogo 5.) Q. Am)'DU al~·o-uf -or do j'OO sharettle ~!illl~ey,itJl -8J\OirJCt.."1, 3. ll!V-<1 a•s~ ("'sot< thai ~o bo ~ cotti~G:IIo co $h)? dired.ot,..,pb;""or"'-nofFXCI.I~ DYes IZJNo DUM« s2s,ooo DS2$,0»-$49,wa D $SO,ooo-s(l!).~m 0$100,000-$249,999 0 S2$0,QI)O.St,OOO,OOO 0 0\'0r $1,000,000 1. !I yes, please dejcrib_-;,------~

OY•• 9. AI• you agor..ret ~·. o!rr.er, o·Houd""""cdb«-ol-ropeey"''holooiiOyoor>? 0r-.'o 1M «PPY lr.tere•L o$sodate P""'QI'l or e"'pb;-ea cf fEiolf rot•• co\fietpOrty7 IIYos, Y.••seltld'.a;tedale o1 eli$~ ondpio> 11>3 OMlO ~'""ilh a ~al palloet, )Ill d ~ i!q\lit)·ln!ece.,_ 5. \WI ooy pel$0<'l o!Mr !Mil Trade< -Ito!, mansgo, ordi"ea k1 !his assodote r-oW>nsh:p'----'-------~

6. Do you h-:.10 or h>vo ;-cu eve< had My oll>er &:«><>nl(•J wilh FXCM? Plenso noto thot If you onswert:o requ!ft

12 ForeK Cnpllallll• rkels -Account 1\ppllcalle>n 11APR2.011

30 833 TRADING-EXPERIENCE , ' - - _: . · ,, '' _. .. . · _ .- ; .

1. Do ycu t.avo expelf~~ ~~~ ~ities.?' I!IY•s Years?~

2. llo)'«ll>av~e~bed<1gcxmnc Years.?~ 3. Do you ..,_..,. e-lt•?...zL 4. Ooj<>Uh>,...e>f*~ Uad:ngwrlllfldoUiuougll inleltlanl! 0< 01Cforoigtloxd-

H)'CIIISo no! !>ave tl(rJ Pli<>t llWI'lg ••J>Orionce, ~lo..<> rei.e-.. thG 'Jflgh RioI< lnvoo tmont NoUce' on Pao• 5.

SIGNATURE . , . - ·. . PLEASE ACKNOWLEDGE YOUftAGREEUENT AND UIIOERSTANOING OF EACH OFTflESE SPECIFICDISCLOSUiiESOF TIIECUEHT AGREEUENT BY CHECI(IIlG TilE APPROPRIATE BOX NExT TO EACH DISCLOSURE TITLE. P:<109!!11f~ll:n!!.Q~W'~!lil§li!l~t~1l«ll PgS liequi'ed 0 0 9. J..uoJ!oriLalim I<> Tnms:fer F!.!lds PgS ROQUiW 0 0 fO.Consen1to.~l'r~~mis.t;!on.dCr:dr.n3W.!l~tttJu"l~~~ P~li R~qul'e

THIS IS A COJoiTftAClUAl AGREEUEtrT. YOU WlU BE llOUND HEREBV.I>O llOl SIGN Ulml YOU IIA.V!< REI\0 ALL OF niE fOIIEGOtllG CAREFIILLY. 1ecJ.nornontls a I-ery term Wid CUJfilele,. eo:epted ~y FXCM nWTilaVQ rcccl-.w o lul,.l!'f IICQ)lll( docun;,-.15 aro ••emll>n$ 0< de~ lo lh!s agoe• a g - Wtion d cl\a~ nOl t-o blr'IQ C<1 FXCM end~ Ori!I®IIOQ!\$ :!han gq"m Tr'*-'< --.1 r

IMPORTANT INFORMATION ABOUT PROCEDURES FOR OPENING A NEW ACCOUNT: To aid the government's fight against the funding of terrorism and money laundering activities, Federal-law requires all financial Institutions to obtain, verify, and record lnfonnatlon that Identifies eat:th person who opens an account Therefore, we ;~re required to obtain your name, address, date of l)lrth and other Information that will allow us to Identify you. We may also ask; to see your driver's license or other ldenllfylng documents. ;

Pl-EASE NOTE THAT AlL NON-U.S. APPLICATIONS MUST BE ACCOMPANIED I'IY: 1. A PHOTOCOPY OF YOUR PASSPORT OR DRIVER'S LICENSi; OR OTHER GOVERNMENT ISSUED ID. . 2. A PHOTOCOPY OF PROOF OF ADDRESS (I.e., A COPY OF UTILITY Bil-L OR BANK STATEMENT NO MORE THA~ 6 MONTHS OLD) Upon processing of the account application. you will !xi contacWd via E·mall. .. ' Pleas& ensure the application Is complete and legible to av.old errors or delays In pco:t;:ess!ng;

FXCM does not charge applieanls orclienls for completing ils applications or forms.

Important warning regarding fraudulent use of FXCM's website and trading platform. . , , Any person who, ~nowingly and with Intent to defraUd FXCM or ils affiliates, submits an accounl application or other Information containing any materially false Information or conceals, for the purpose of misleading, lnfomtatlon concerning any related fact material, corpmits a fraudulent acl, which is a crime which may subjecl such person to criminal prosecution and lhe Imposition of cfimlnal and civil penahles. j

If you intentionally provide us wllh any false ot misleading lnfom1alion and we suspect fraud, we wiU commuoicale the f13cls surrouoding your 1;ommuolcatioo to us to all relevant national. stale and local law enforcemenl authorities. ·

13 fore~ Capital Markets -Acco~nl /1-ppllcath>n 11APR2011

834 FXCM Forex Capital Markets, LLC

ZFxcm Flnan~i<'l Square 32 Old SUp 10th Floor ' I ··~ii4•1 New Yo1k, NY 10005 USA Tel. 212 897 7660

I NYSE. Fax. 212 897 7669 E·mau: admln@fxcm.com ~·ww.(ltcm.com

I ~ ~ - -- , -- - . - - - -· - ---- --- - ~ ' - - .- · PARTNERSHIP RESOLUTION • ; : - . -- ---- ' - - '

l I •. .:.R.:.F.:.F___:G.:.P...:'..:L:..:L.:.C'-----~aGoneraiP~M<-rci Revelallon Forex Fund, LP_ • .,-NJ>I'cmledU'lde_S_ta_t_e_...,--_or :::T::ce=x::a:-:s=====(llwl'Pottne"'Np'). dotooreb'JOOpled in ac=d:!liU Voi'.tl tile proced•...,. ••1 locth in ll»gcuom;,g r.strumero ollho f'<; con.'ticl \\i'll&rr(o! lh9 provisOO. ol tl>o iP-""*'11 inS1run>e<11> o1 lho~. .

I Partllmhip 11..,., Revelation Forex Fund, lP

2400 Dallas Parkway Suile 540 c.ty_P_Ia_n_o_ _ _ __

l A

Sla'~: T_e_x_a_s_ _ _ Poota!Codo 75093 CC

P2rlne or* rona11Ciallnst;lullon7' Ye$ 0 NoD

I "Tho leon fimltlO:i31111sL1"""' ~pp&es 10 bulls not Jm~iHI lo a .,...... uedilO< lhrifllno>l opor.~lar, mtrual lund, a I~ soroc!er ct moooy «any ott-...- porsot1 ..t>O engages .. a buono F.,.,.,iallt\Sl~.r.lon at.oinci.>des lnifovlduolt ..maro ong~ In~ orpoo5ng luld$ort 1ho loehahldllets. j

RESOLUTION :

I (I)R~>

I lI toacnoiii>Orn ot$UO'..h OII>Go' pa e»>.or~ency I« 1h'4 Par1no;olip ll'loogo., Md · FXCM, M .aid r..n lo now oonotiluL9 """'"' to d-> any ol 1ho Pertn.,ship; (b) To t:cureooy ~-M~iono lorpSig'noroehe&aKiocludOQ t"" power!<> seU·stm·; 'To

(d) """"f•m ,..,.Y IO< l()o.,...ct-"'"' or ..lo otlono!gl

(o) Tore¢9i"we En41confrm tllo ccn«:S:ness ofnotie&s. cOflfiiTT\2tions. requg~l$, dtm~:andiCQnriJ1'na~sof fNf::ttJ(iod'~

(f) To ptl«i O ~M~ d tho P2Jln!osh'p 01'1 &rrf r.>;;t\

II IOl Topa~ FXCl.l ~o roes, commissionwU. t>"'f W(lh transodions end en ai1IO:st«< bY fXCM fonnowe 1a 1mo B$ "'"'9" or equr1 I« 11>o Pettnelohip's ~ !

(h) To se:l'G, c:ornJlloml"'· «fpof gCi& relo,..os on bel >all' ollllls Patn~•lt'p wolh •e!lpecllo 8lY1 '1>11 eij doins. ~·$ ood conro!2<5ies: I ~) To O:herA;soJ*Ifotm allletm$0nd pr<>vi>ionso!lllo~lmementlore

(2) let n bo lullhef mol.ed \hal~ i5ln 11>o boot iolereol of !he P.,..,...ship t<>ha>'O ~· aco f'Ofdlos<>an1 r"' fXCio\to I nrrar>Qe for tho e\:OOI'JOO cl l<>rno \'on!c1t21G noloxea.o!etllp o•ectly, :

(3) Re:solve thai FXCM may ~al"'ilh""'t and lll1o!lh<>por.<>n5 ~d"edl)oorind~ec~yl.rJlhs 10/~lo1hey Vie/r>efoa&lgw)..h tro<> P~ dirOg• 10 FXCM In 'lll'it"o ~II» maoner te .,.rOOtlsU>or•ldOtf;o<«<; : (41 Furtller Re...,\-od, lhslln ocd.,lolr>:lu!l>e~ oflho Part11eroh",lhe 6XO!Wioo and doit."'Y cl MAox>unl ~~IY.lo\ Cl(m~ Le~er; Cger>l ~r~o FXC!.I to a:! as A!)-'eS af\'h!cl\ lla~ been pr~-..1 to !his meeli"Q l!!li YOtl be ,filedv.111l lhe "'cords olll>o p~"•hi>) by ""Y Q!f""' o1 1M PatlnorV aulnO deliver lha ~malo FltC!.I;

(~I Fl.ll\her Resoh~. UUtlhs rorego!r>J ,....,u- "'"'tho cetl;roeare aelua!ly l\lrriShol PaM«shlp pwsu•l>llhe<&l9 ;nd lhay her

{6) FU!Ihor 1\o>o~>·«i, !hot ll>o Petfneroh'p "'7~• lo ndernnify 1>11<1 hold harml~ss FXCM 200 h e!.S(>Oa~ ~om any Md eU loss, damaQO or f~tit.l)' ncuo:r.a ~so af ony of lila tepfeWtlalioo:S Of'" w~ic-s madd ebo-.-n sl'\-ltl not b9 b'l.fV end cooed.« My of th~ EC.roecments. @ntered Into beN/een tbo Patlnelship end FXCM s.'ha'J not tla\."9 ~ tLJ.~ por1ormed by lho Partlle'lliJY. ' Forex Capital Marl11

32 835 (1') fl.. .rther Reso.'\'1!-::1, thot lhEI ebcrJa-nomo3 reprc'$-OO(iili'.-es b9 200 hereby er(! 9Uthoiized Md 01rected lo pte.l!iienl a c:ert~l!!d eopy of tJ;eso ro!f<>I>'J given 1o11>0 AgO'l~l SoJCn litljo &s FXCIA recer;oo ~>T'41en ooll>=alion !hal StJdl pot.ans are 1>0 IOr.ge< :sucholffCefslsh>lrc;<;<>linoo In M '"'""''""effect ("'••p>di<• noli:e of re....ocelb'l or tnodifieatioo is gr.-en ilwii!.ing: to FXCM « lt w,x.a.ssort; or MsV,s. ol"toett-.er enyci lh P"'1norshlpl...-.til ·

I further cerlil~ tftall~oloregolog resolullons ~ ..... nolllean ..-Jod or rescinded and aro now In l"lllotce end ~ffeclond tllat tho Pertner~lllp loa• lllo j>owor under its QO'iO

NGm$ ond Signo\uto d 0eneto1 PPMet {ormonoging psnner)

Name ancl Signol"'o tJ G~aiPat!roa< (oriMI'"'Sitlgpotlner) 07/0612011 Todlly'o Dat&"'(M.,.M~ID"'O"'/'('(Y'()=:=--"-------"----~--

PERSONAL GUARANTY . ·. · ' . ' . : : :

In o oponl"9 ol lito abovHel!!leo'!OOd o«oor• for CS.n~ FXCM mus1 have o personal (luanlfieoltl ori'i. For \his """"'"'' tho """'"~Qned OQI<;>enSO$, v.-11;:1, rn«f becoo;o re<»vffllbto b'/ FXCM from Clienl i This guaran!eo $118! rema\oJ ill full fon:c and efltd U'llillho 1-n.lion ol tho Ci<-nl Agteem!!fll, prooMeed sha!l nol b.> re~ ..j !!'~llor!O tho 8Cs -k.th FXCM ta•ts. !

Tll1s Guan;ncy ohall bo ljO>I!IIRd OO<\Otruod In ~nee 1\ilh Ill• !a.,. ollh9 Slato ol Hew Vorl; and GrarEIIlo< herobf e>fo or on fodo!al and ow to axs1s located In .,.,.,YUill COUOMnsl trus Guar'.nly, em taniOnl$ 11>01 Girl proooss 0( Mtioo o1 mol ion"' oUle< appr~ lollll)' of ••;ct<:oto1s or to snyjodgo lherool mll}l bO w-.'Odv.itlmot l'itllco llf re~tered"' c:ertliOd mal ill by~! Ul'om. ; lNsGuarcnty onaamrel<>lh9t:>eoa•et' pa~y .,..llhoU\ tho l"'o< v.r;tJen «men! t p'ided that ony sl>'!> ~s!grn\~edas ollhe _ _ day ol _ _ _ 20_.

SSflumbe<'.

Foe PartnErship Acoounls ONLY:

In aMitiOnto ~~~ C6enl Agreement to be completed by the General Partner, please be sure tosubmll the following:

(II PartQershlp A~1eemer11 (lrllmnoo paltnerelilp, subrnR copy of Limited Pilllnershlp Agreement and CertifiCate of Limited Parlflership) (2) lden6ficalion for all Signlr.;J Parlflers (i.e., copy of passpOrt or driver's license.); and ' . (3) Proof of address lor lhe signing members (i.e., a copy of an updated Ulifrty bill 01' bank slatemenl no more !han si>c monlhs o!~)

Forex Capllal ~.\arkcls- Partnership Resolullon 19 11APR2011

33 836 ZFxcm Financi~l Institution Questionnaire . ,. · In an effort to better understand your business model and to assist FXCM in making the required customer screening process smoother, we ask that you complete the following questionnaire regarding your company's business structure. Should you have questions regarding any of the content below, please contact cmnp!iance@fX.cm.com and we will be happy to assist you further. Thank you in advance for your cooperation.

1. Please provide a general description of your compatly's business model, incldding the targeted customer base (e.g., investment fim1s, individuals, etc.) and the products/seryices that your institution offers. '

Revelation Forex Fund, LP (the Company) is a highly specialized hedge fund ~hat utilizes a statistical arbitrage strategy to capture short and medium term variances between global exchange rates while remaining market neutral. Our target · customers Include accredited individual investors and institutions.

2. Will deposited funds held with FXCM be proprietary funds of the institution or wijl any portion ofthe funds oliginate from third parties (i.e., investors, members, and/or shareholders)? Please outline the origin ofthe funds which will be traded at FXCM.

Investor funds will be deposited into the Company's bank account then the Company will place those funds into the FXCM account. '

3. Wltere does the institution maintain physical offices?

2400 Dallas Parkway Suite 540 Plano, Texas 75093

4. Please provide an understanding of your institution's ownership structure (public v~. private); a listing ofall owners with 25% or greater interest, and the management struc~ure including the physical location ofthe managers.

The Company is wholly owned by RFF GP, LLC which is managed and wholly:owned by Kevin G. White.

F01~~ Cnpilnllllarl;cts -l'inanciallostitution Q11CSliom•1ir.:>

837 t-1• L'VV•l I.UV V\..l"tHlJf.UI-) '·"'"'l.V ... Q \.V V.I.. U.t.IJ '-'-"r'-'"-'l- ~1&\.# l)\.•pv• t.J..Jr&.VII VJ. U. .t.UV.Il\JU,U.J l-'-'0'-•IU."'""J V'-J.._..J VI

any other govei.nment authorily? (Examples include the central bank, jurisdictional regulators and any other indepcntlent associations.)

No

6. Please confinn if your company clears for other institutions allowing other institut~ons to conduct business and provide services to their clients through your institution without the expense of a physical presence?

No, we do not.

. I 7. If the institution has a designated Compliance and Anti Money laundering officer tl1at is not completing this questionnaire, please provide the name and contact infom1ation bc~ow.

!

CompanyName: Revelation Forex Fund, LP l

Name: Kevin G. White ';

' Title: Managing Principal of RFF GP, LLC the General Partner !

;::71: i

Si"'""'"' Date: 7/6/2011

E-mail Address: kwh ite@kgwcapital.com

!'ore~ Capitnl Mark~ls -- Flnancbllnstilution Qucstionnai

838 Tab B , . . 3/7/2014 SCANNED Page 1

CAUSE NO. 429-00075-2014

KELLY M. CRAWFORD, § IN THE DISTRICT COURT Receiver, as Assignee, § § Plaintiff, § § V. § 429th JUDICIAL DISTRICT § WEAVER & TIDWELL, L.L.P., § KEVIN A. SANFORD, SARAH § ROBERTS, BRIAN HINMAN, and § FOREX CAPITAL MARKETS, LLC, § § Defendants. § COLLIN COUNTY, TEXAS

ORDER ON V ARlO US MOTIONS

On the 6th day of March, 2014, Defendants came on to be heard on various

Motions. After hearing the arguments of counsel, the Court issues the following

rulings:

Defendant Forex Capital Markets, L.L.C.'s Motion to Dismiss for Improper

Venue and Lack of Jurisdiction are DENIED.

Defendant Forex Capital Markets, L.L.C.'s Motion to Compel Arbitration is

DENIED.

Defendant Weaver & Tidwell, L.L.P.'s Plea to the Jurisdiction and Plea in

Abatement are DENIED.

r- PlaintiffKetcy..M. Ctawford's Qtryeetion to Defendant formt Capitall\fatket7

c L.L.C. 's rvtution to Destgnated Itespunsible Thifd Pftt'ties is SUSTAI~ffiD. Defe~

ORDER ON VARIOUS MOTIONS 1070 Page 1 F

t]N notice pleading standard with tespeet te each third party for whom it wishes to 9--- . apportion respQRSt.bT nty .m t hIs case. .5T

Signed this ~y of March, 2014.

ORDER ON VARIOUS MOTIONS 1071 Page2 Tab C AFFIRM; and Opinion Filed December 31, 2014.

S In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00341-CV

FOREX CAPITAL MARKETS, LLC, Appellant V. KELLY M. CRAWFORD, Appellee

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-00075-2014

MEMORANDUM OPINION Before Justices O’Neill, Lang-Miers, and Brown Opinion by Justice O’Neill In this consolidated interlocutory appeal and petition for writ of mandamus, appellant

Forex Capital Markets, LLC (FXCM) complains of the trial court’s order denying its motion to

dismiss for improper venue or, in the alternative, motion to compel arbitration. In re Lisa Laser

USA, Inc., 310 S.W.3d 880, 883 (Tex. 2010) (mandamus relief is available to enforce an

unambiguous forum-selection clause); TEX. CIV. PRAC. & REM. CODE ANN. §§ 51.016,

171.098(a)(1) (West 2011) (authorizing interlocutory appeals from denial of motion to compel

arbitration). In both proceedings, FXCM asserts the trial court erred in not enforcing provisions

of a contract entered into between it and a limited partnership against the federal equity receiver

of that partnership. For the following reasons, we affirm the trial court’s order and deny the

petition for writ of mandamus. Kevin G. White induced investors to contribute millions of dollars in funds to invest in

Revelation Forex Fund, LP (Revelation) to engage in foreign currency exchange (“Forex”)

trading. To conduct that trading, Revelation opened a “Forex” account with FXCM. When it did

so, Revelation agreed to provisions in a “Client Agreement,” which included a forum selection

clause consenting to jurisdiction and exclusive venue in New York and an agreement to arbitrate.

White subsequently misappropriated over $1 million in partnership funds. The investors also

suffered significant losses from Revelation’s trading activities.

The Security and Exchange Commission (SEC) and the Commodity Futures Trading

Commission (CFTC) instituted civil enforcement actions in federal court against White,

Revelation, and other entities White controlled alleging White defrauded Revelation’s investors. 1

The federal court appointed appellee Kelly M. Crawford as receiver over the “estates and assets”

of White, Revelation, and related entities. The federal court gave Crawford broad powers,

including all powers, authority and rights that the officers, directors and partners had possessed,

as well as all powers and authority of a receiver at equity. The federal court also directed

Crawford to investigate the business affairs of the entities and, after obtaining leave of court, to

file such actions as he deemed appropriate.

Crawford subsequently determined that Revelation’s investors had claims against FXCM

for its participation and complicity in White’s scheme. The investors unconditionally assigned

their claims against FXCM to Crawford and agreed that any recovery would be included in the

“Receivership Estate.” The federal court then expressly authorized Crawford to file suit against

FXCM on the assigned claims.

1 White pleaded guilty to committing wire fraud in connection with the fraudulent scheme.

–2– Crawford then filed this suit, in his own name, but as the assignee of the investors’

claims. 2 FXCM filed a motion to dismiss for improper venue or, in the alternative, motion to

compel arbitration. It relied on the forum selection clause and arbitration agreement in

Revelation’s Client Agreement. The trial court denied FXCM’s motions.

According to FXCM, the trial court erred in doing so because, as Revelation’s receiver,

Crawford is bound by its agreements regarding venue and arbitration. Crawford, on the other

hand, responds Revelation’s agreements are inapplicable because he has sued only on claims that

the investors assigned to him for injuries they suffered as a result of FXCM’s conduct.

It is well settled that when a claim is assigned, the assignee “steps into the shoes of the

assignor and is considered under the law to have suffered the same injury as the assignors and

have the same ability to pursue the claims.” Sw. Bell Tel. Co. v. Mktg. on Hold Inc., 308 S.W.3d

909, 916 (Tex. 2010). An assignee may thus assert those rights that the assignor could assert,

including bringing suit. Flagstar Bank, FSB v. Walker, 05-13-00724-CV, 2014 WL 6065713

(Tex. App.—Dallas Nov. 14, 2014, no pet. h.); Cadle Co. v. Estate of Weaver, 897 S.W.2d 814,

818 (Tex. App.—Dallas 1994, writ denied); see also Jackson v. Thweatt, 883 S.W.2d 171, 174

(Tex. 1994). An assignee’s rights are also subject to defenses existing at the time of the

assignment that would have been available against the assignor had there been no assignment.

See Irrigation Ass’n v. First Nat’l Bank of Frisco, 773 S.W.2d 346, 348 (Tex. App.—Dallas

1989, writ denied).

Absent an agreement to the contrary, a plaintiff generally has the right to have their

claims resolved by litigation and to choose the venue in which to file suit. See In re Fisher, 433

S.W.3d 523, 533 (Tex. 2014) (plaintiff is generally afforded the right to choose venue when suit

2 Throughout, we use the phrase “investors’” claims to reference claims asserting the legal rights of the investors, not to identify the party with title or ownership of the claims.

–3– is filed); Freis v. Canales, 877 S.W.2d 283, 284 (Tex. 1994) (party who has not agreed to

arbitration has a right to have disputes resolved by litigation). A party seeking to enforce a

forum selection clause or an arbitration agreement must first show the existence of the agreement

and that the claims fall within the scope of that agreement. See In re D. Wilson Constr. Co., 196

S.W.3d 774, 781 (Tex.2006) (orig. proceeding); Seven Hills Commercial, LLC v. Mirabal

Custom Homes, Inc., 442 S.W.3d 706, 715 (Tex. App.—Dallas 2014, pet. filed); Young v. Valt.X

Holdings, Inc., 336 S.W.3d 258, 262 (Tex. App. —Austin 2010, pet. dism’d ).

This initial burden includes showing the contract applies to the parties involved in the

dispute. See VSR Fin. Servs., Inc. v. McLendon, 409 S.W.3d 817, 827 (Tex. App.— Dallas 2013,

no pet.). A party may meet this burden by showing the party signed the contract or is otherwise

bound to the contract under principals of contract law and agency. See In re Kellogg, Brown &

Root Inc., 166 S.W.3d 732, 738 (Tex. 2005); CNOOC SE Asia Ltd. v. Paladin Resources

(SUNDA) Ltd., 222 S.W.3d 889, 894-95 (Tex. App.—Dallas 2007, pet. denied); Mohamed v.

Auto Nation USA Corp., 89 S.W.3d 830, 835-36 (Tex. App.—Houston [1st Dist.] 2002, no pet.).

Here, Crawford filed suit against FXCM on claims the investors’ unconditionally

assigned to him. FXCM does not challenge the validity of the assignments. As a consequence,

Crawford stands in the investors shoes. But to support its motion, FXCM did not show the

investors agreed to either venue in New York or to arbitration. Nor did FXCM show the

investors were otherwise bound under any theory of agency or contract law. 3 Instead, it asserts

Crawford was bound by Revelation’s agreements because the investors’ claims are now

“property of the receivership estate” and Crawford, as receiver, “represents” the “estate” and is 3 In its reply brief, FXCM asserts for the first time the investors were bound by the provisions in the Client Agreement. It relies on two agreements it asserts shows the investors authorized Revelation to execute the Client Agreement. But because FXCM raised this issue for the first time in its reply brief, we cannot consider it as grounds for reversal. Cebcor Serv. Corp. v. Landscape Design & Const., Inc., 270 S.W.3d 328, 334 (Tex. App.—Dallas 2008, no pet.) (party may not raise an issue for the first time in reply brief). Moreover, the only agreements FXCM directs us to are copies of a limited partnership agreement and a subscription agreement Revelation attached to its “Public Offering Memorandum.” Neither agreement is signed by any investor. Further, FXCM has cited us to no authority and has provided no legal analysis showing these agreements are sufficient to bind the investors to the provisions in the Client Agreement. Huey v. Huey, 200 S.W.3d 851, 854 (Tex. App.—Dallas 2006, no pet.) (failure to cite applicable authority or provide substantive analysis waives an issue on appeal).

–4– thus bound by any agreements of the “estate.” Of course, the “estate” did not execute the

agreement FXCM relies on, only Revelation did. 4 Nevertheless, FXCM asserts Crawford is

bound by the agreement because of the limitations on a receiver’s standing to bring claims to

benefit investors.

As a general rule, a receiver may sue only for claims of the entities in receivership, and

may not assert claims for injuries directly suffered by the investors. See Liberte Capital Grp.,

LLC v. Capwill, 248 F. App'x 650, 655 (6th Cir. 2007); Scholes v. Schroeder, 744 F.Supp. 1419,

1421 (N.D.Ill.1990); see also Cotton v. Republic Nat’l Bank of Dallas, 395 S.W.2d 930, 941

(Tex. Civ. App.—Dallas 1965, writ ref’d n.r.e.); Janvey v. Democratic Senatorial Campaign

Comm., Inc., 712 F.3d 185, 190 (5th Cir. 2013); Javitch v. First Union Secs., Inc. 315 F.3d 619,

625 (6th Cir. 2003); Jones v. Wells Fargo Bank, N.A., 666 F.3d 955, 966 (5th. Cir. 2012). These

third-party claims are personal to the investor, and they alone may bring them. See Cotton, 395

S.W.2d at 941.

When a receiver sues for the entity’s claims, the receiver generally stands in the shoes of

that entity, possessing no greater rights than the entity had and subject to any agreements the

entity entered. 5 Javitch, 315 F.3d at 625; cf. Hays & Co. v. Merrill Lynch, Pierce, Fenner &

Smith, Inc., 885 F.2d 1149, 1153-54 (3d Cir.1989) (when bankruptcy trustee asserts claims

derivative of debtor’s rights, he is subject to debtor’s agreement to arbitrate). A receiver is

4 Crawford agrees that any recovery he might obtain on the claims would become property of the estate, but he does not concede the claims themselves are receivership property. That issue is not pertinent to our resolution of this appeal. We also note that a receiver is an officer of the court, not a representative of the parties. See Sec. Trust Co. of Austin v. Lipscomb County, 142 Tex. 572, 584, 180 S.W.2d 151, 158 (1944). “He is a disinterested party, the representative and protector of the interests of all persons, including creditors, shareholders and others, in the property in receivership.” Id. (citing Clark on Receivers, 2d Ed., Vol. 1, pp. 33-37, ss 34-38, p. 43, s 45; 45 Am.Jur. pp. 106-111, ss 126-130.) 5 Even so, when a receiver brings claims of a receivership entity, he does not necessarily stand in the entity’s shoes for all purposes. F.D.I.C. v. O'Melveny & Myers, 61 F.3d 17, 19 (9th Cir. 1995) (while receiver generally occupies the same position as the entity he represents, certain defenses based on the entity’s unclean hands or inequitable conduct do not generally apply against the entity’s receiver); see also Scholes, 56 F.3d at 753–55 (the defense of in pari delicto does not apply to receiver even if it would apply to entity); Jones, 666 F.3d at 966.

–5– therefore bound to a receivership entity’s agreement to arbitrate if the entity would have been

subject to that agreement. 6 See Javitch, 315 F.3d at 627.

Here, however, Crawford is not asserting standing based on his capacity as receiver, but

on the investors’ unconditional assignments. Cf. Oakes v. Lake, 290 U.S. 59, 62-63 (1933)

(holding limitations generally applicable to a foreign receiver’s authority to bring claims outside

his jurisdiction do not apply when receiver brings claims based on assignments). FXCM does

not challenge the validity of the assignments or indeed contest that Crawford had standing to

bring the claims. Vt. Agency of Nat. Resources & U.S. ex rel. Stevens, 529 U.S. 765, 773 (2000)

(“an assignee of a claim has standing to assert the injury in fact suffered by the assignor”); see

also in re Bogdan, 414 F.3d 507, 512 (4th Cir. 2005) (unconditional assignments gave

bankruptcy trustee standing to prosecute creditors’ claims). Indeed, if Crawford lacked standing,

FXCM’s remedy would not be enforcement of Revelation’s contract against him, but dismissal

of the claims for want of jurisdiction. See Lujan v. Defenders of Wildlife, 504 U.S. 555, 560-61

(1992).

Finally, we cannot agree with FXCM to the extent it suggest that the capacity in which

Crawford brought the assigned claims dictates the rights and remedies applicable to those claims.

Instead, under well-settled principals that govern assignments, Crawford acquired all the rights

the investors’ had, including the right to bring this suit in Texas state court.

6 However, the receiver is not necessarily bound to such agreements when brining claims of other parties. See Javitch, 315 F.3d at 627 n. 7.

–6– Therefore, we affirm the trial court’s order denying FXCM’s motion to compel

arbitration and deny its petition for writ of mandamus.

/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE

140341F.P05

–7– S Court of Appeals Fifth District of Texas at Dallas JUDGMENT

FOREX CAPITAL MARKETS, LLC, On Appeal from the 429th Judicial District Appellant Court, Collin County, Texas Trial Court Cause No. 429-00075-2014. No. 05-14-00341-CV V. Opinion delivered by Justice O'Neill. Justices Lang-Miers and Brown KELLY M. CRAWFORD, Appellee participating.

In accordance with this Court’s opinion of this date, we AFFIRM the trial court’s order denying appellant Forex Capital Markets, LLC motion to compel arbitration.

We ORDER appellee KELLY M. CRAWFORD recover his costs of this appeal from appellant FOREX CAPITAL MARKETS, LLC.

Judgment entered this 31st day of December, 2014.

–8– Order entered December 31, 2014

In The Court of Appeals Fifth District of Texas at Dallas No. 05-14-00341-CV

IN RE FOREX CAPITAL MARKETS, LLC, Relator

V.

KELLY M. CRAWFORD, Appellee

On Appeal from the 429th Judicial District Court Collin County, Texas Trial Court Cause No. 429-00075-2014

ORDER In accordance with this Court’s opinion of this date, we DENY Relator Forex Capital Markets, LLC’s petition for writ of mandamus.

We ORDER real party in interest Kelly M. Crawford recover his costs of this proceeding from relator Forex Capital Markets.

/Michael J. O'Neill/ MICHAEL J. O'NEILL JUSTICE Tab D Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 1 of 10 PageID #: 994

IN THE UNITED STATES DISTRICT COURT FOR THE EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

§ SECURITIES AND EXCHANGE COMMISSION, § § Plaintiff, § § v. § CIVIL ACTION NO. § 4:13-CV-0383 KEVIN G. WHITE, § KGW CAPITAL MANAGEMENT, LLC, § REVELATION FOREX FUND, L.P., and § RFF GP, LP, § § Defendants, § § MERIDIAN PROPANE, L.P., and § W CORPORATE REAL ESTATE, LP d/b/a § KGW REAL ESTATE, § § Relief Defendants. § ------------------------------------ §

RECEIVER'S SECOND QUARTERLY STATUS REPORT

Kelly M. Crawford, as the court-appointed Receiver, submits the following second

quarterly status report pursuant to this Court's Order Appointing Receiver (the "Receivership

Order"). 1

The Receivership Order directs the Receiver to submit quarterly status reports within

thirty (30) days after the end of each calendar quarter reflecting to the best of the Receiver's

knowledge as of the period covered by the report the existence, value, and location of all

Receivership Property, and of the extent of liabilities, both those claimed to exist by others and

those the Receiver believes to be legal obligations of the Receivership Estate. More specifically,

paragraph 51 of the Receivership Order states: 1 The Receiver requests the Court to take judicial notice of the pleadings on file in this lawsuit.

1 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 2 of 10 PageID #: 995

"The Quarterly Status Report shall contain the following:

A. Summary of the operations of the Receiver;

B. The amount of cash on hand, the amount and nature of accrued administrative

expenses, and the amount of unencumbered funds in the estate;

C. A schedule of all the Receiver's receipts and disbursements (attached as Exhibit A

to the Quarterly Status Report), with one column for the quarterly period covered

and a second column for the entire duration of the receivership;

D. A descriptions of all known Receivership Property, including approximate or

actual valuations, anticipated or proposed dispositions, and reasons for retaining

assets where no disposition is intended;

E. A description of liquidated and unliquidated claims held by each Receivership

Estate, including the need for forensic and/or investigatory resources;

approximate valuations of claims; and anticipated or proposed methods of

enforcing such claims (including likelihood of success in; (i) reducing the claims

to judgment; and, (ii) collecting such judgments);

F. A list of all known creditors with their addresses and the amounts of their claims;

G. The status of Creditor Claims Proceedings, after such proceedings have been

commenced; and

H. The Receiver's recommendations for a continuation of the receivership and the

reasons for the recommendations."

2 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 3 of 10 PageID #: 996

On September 25, 2013, the Receiver filed his initial Quarterly Status Report [Docket

No. 46] based upon the period from the inception of the receivership on July 10, 2013 through

September 25, 2013. This Second Quarterly Status Report incorporates the information

contained in the initial Quarterly Status Report, and is based upon the period from September 26,

2013 through December 31, 2013.

I. SUMMARY OF THE OPERATIONS OF THE RECEIVER AND DESCRIPTION OF KNOWN RECEIVERSHIP PROPERTY AND CLAIMS HELD BY THE RECEIVERSHIP ESTATE

During the period covered by this Second Quarterly Status Report, the Receiver

continued to identify assets subject to the receivership, continued to liquidate receivership assets,

investigated and developed claims held by the Receivership Estate, and settled numerous claims

for the benefit of the Receivership Estate.

On October 16, 2013, the Receiver and his counsel interviewed Defendant Kevin White

at the office of Mr. White's counsel. Mr. White cooperated in the interview and the information

Mr. White shared with the Receiver helped the Receiver identify additional assets to recover and

assisted in the investigation of claims against third parties.

A. IDENTIFICATION OF ADDITIONAL RECEIVERSHIP PROPERTY

Based on the Receiver's interview with Mr. White, the Receiver discovered that a display

booth purchased with investor funds was being stored with the manufacturer of the booth in

Carrollton, Texas. Through the forensic accounting conducted by the Receiver's accounting

firm, the Receiver traced at least $40,000 of investor funds to The Trade Group, a company in

Carrollton, Texas that manufactures display booths for promotional events. Defendant White

had a display booth custom built to promote the Revelation Forex Fund and paid The Trade

3 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 4 of 10 PageID #: 997

Group $40,000 for the booth. After the booth was used by Defendant White, it was returned to

The Trade Group for storage. The Receiver confirmed the display booth was at The Trade

Group and the Receiver negotiated the sale of the display booth to an independent third party for

$6,000. From these sales proceeds, the Receiver paid The Trade Group $1,380 for the cost of

storing the display booth for several months.

B. SETTLEMENT OF FRAUDULENT TRANSFER CLAIMS

As reported in the Receiver's initial Quarterly Status Report, the Receiver determined

that he had fraudulent conveyance claims against the family members of Defendant Kevin

White, and those persons who worked in the KGW Capital office with Defendant White. The

Receiver made demand upon them and they denied any liability to the receivership. During the

period covered by this Second Quarterly Status Report the Receiver successfully negotiated

settlements with each of the persons the Receiver alleged were recipients of fraudulent transfers,

and such settlements were approved by the Court.

With respect to the White family, the Receiver recovered from the daughter of Defendant

Kevin White approximately $7,000 from monies remaining in an account in the daughter's

name; a 2009 Chevrolet Tahoe being driven by the daughter; and a Sig Sauer hand gun given by

Defendant White to his daughter. The Receiver recovered from the son of Defendant White a

negligible sum ($13.00) remaining in a bank account in the son's name; and a shot gun given by

Defendant White to his son. A 2010 Toyota Tundra being driven by White's son had no equity

and was repossessed by the lender. The Receiver also obtained a release from Defendant

White's ex-wife of her claims against the receivership estate arising out of her divorce decree.

The Receiver also negotiated settlements with each of the persons who worked with

Defendant White in the KGW Capital Office, as follows:

4 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 5 of 10 PageID #: 998

Steve McCraw is paying $71,000 over the next several months2 ;

Cody Savage paid $42,1 00;

Christine Xu paid $1 0,000; and

Jill Waterston paid $2,500.

The settlement of these claims totaling $125,600, without the expense of protracted

litigation, will benefit the Receivership Estate and ultimately the approved claimants who are the

beneficiaries of the Receivership Estate.

C. CONTINUED LIQUIDATION OF RECEIVERSHIP ASSETS

During the period covered by this Second Quarterly Status Report, the Receiver sold the

following receivership assets:

1. Sculpture of horses for $770

2. Trade Display (as discussed above) for $6,000

3. Guns for $2,600

4. 2009 Chevrolet Tahoe for $25,000

5. Miscellaneous personal property left over from the auction and fishing lures

for $166.

The Receiver is still seeking buyers for the following receivership assets:

1. 2008 Mercedes Benz S550 for sale for $32,000

2. 2002 Rolex Yacht Master watch for sale for $6,000

3. One shotgun and one Sig Sauer handgun, which the Receiver is seeking to sell

for approximately $700.

2 To date Mr. McCraw has paid $40,000.

5 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 6 of 10 PageID #: 999

D. DEVELOPMENT OF CLAIMS HELD BY RECEIVERSHIP ESTATE

The Receiver continued investigating the role of other persons and entities, including

professionals, involved with KGW Capital, the Revelation Forex Fund, the solicitation of

investors in the fund, and/or the trading of the fund. The Receiver made demand upon Weaver

& Tidwell and the individual accountants who prepared the performance report of the account

managed by Brian Hinman that was used by Defendant White. In addition, the Receiver made

demand upon Sean Hyman whom the Receiver contends endorsed the Revelation Forex Fund for

a period of time.

In furtherance of the Receiver's investigation, on November 20, 2013 the Receiver's

counsel took the deposition of Brian Hinman, the person who traded the Revelation Forex Fund

and who was employed by FXCM. At the deposition Mr. Hinman invoked his 5th amendment

privilege in response to most of the questions. On December 30, 2013 the Receiver and his

counsel met in Chicago, Illinois with James Bibbings, a former auditor for the National Futures

Association, to determine the standards of the industry that should have been followed by FXCM

in dealing with Defendant White, KGW Capital, and the Revelation Forex Fund. The Receiver

recently made demand upon FXCM for the production of additional documents.

The Receiver also made demand upon Doug Conder (the CPA who prepared the K-1 's

issued to the investors) to pay to the receivership a sum equal to the cost to amend the tax

returns, and reissue the K -1 's

The Receiver received assignments of the claims against third parties from each of the

investors in the Revelation Forex Fund. The Receiver proposed to the Court as part of the

Receiver's liquidation plan that these claims against third parties be pursued on a reduced

contingent fee basis.

6 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 7 of 10 PageID #: 1000

II.

AMOUNT OF CASH ON HAND AND ACCRUED ADMINISTRATIVE EXPENSES

As reported in the Receiver's First Quarterly Status Report, to administer the receipt and

disposition of monies in the receivership, the Receiver opened receivership accounts at JP

Morgan Chase and at Legacy Banl(. The current balance of the Legacy Bank Account is

$28,535.91. Legacy Bank originally claimed a right of offset to these monies based upon a loan

Legacy Bank had made to a receivership entity that is in default, but Legacy Bank, despite

having actual notice of the need to file a creditor claim in the receivership, failed to file a claim

in the receivership and does not hold an approved claim in the receivership. Accordingly, the

Receiver contends such monies are available to the receivership. The current balance held in the

receivership account at Chase is $3,256,526.16. The Receiver also has $40 cash on hand

received from the sale of fishing lures that remains to be deposited into the receivership account.

The accrued and unpaid administrative expenses from the inception of the receivership

through December 25, 2013 that have not been paid are approximately as follows: $37,965 in

Receiver's fees; $65,705.50 in Receiver's attorney's fees; $10,761.43 in expenses incurred; and

$5,509.10 in Receiver's accounting fees and expenses. In addition, a check payable to Platinum

Storage in the amount of $14 7 has not yet cleared the bank. As a result, the current balance of

unencumbered funds in the receivership account at Chase is approximately $3,136,438.10 3 . A

schedule of the Receiver's receipts and disbursements since the Receiver's First Quarterly

Report is attached hereto as Exhibit A. A schedule of the Receiver's total receipts and

disbursements from the inception of the receivership through January 3, 2014 is attached hereto

as Exhibit B.

3 This balance is based upon the cash on hand as of January 3, 2014, and administrative expenses incurred as of December 25, 2013.

7 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 8 of 10 PageID #: 1001

III.

THE STATUS OF CLAIMS PROCEEDINGS FOR INVESTORS AND CREDITORS

On October 9, 2013, the Receiver filed with the Court the Receiver's Proposed

Liquidation and Distribution Plan and established a procedure for investors and creditors to

submit claims to the Receiver; for the Receiver to make his recommendations regarding the

claims; and an opportunity for the investors and creditors to object to the Receiver's

recommendations.

On October 30, 2013, the Receiver filed his Report Regarding the Responses of Investors

and Creditors to the Receiver's Proposed Liquidation and Distribution Plan. This Report

included a list of the claims filed by the investors and creditors as well as the Receiver's

recommendations regarding the claims. As set forth in the Receiver's Report, no investors or

creditors objected to the Receiver's Proposed Liquidation Plan. One creditor, First Community

Bank, objected to the Receiver's Distribution Plan, which proposes to pay investors before

paying creditors. First Community Bank objected to the Receiver's proposal and argues that

creditors should be paid ahead of investors, or equally. No other objections were filed by any

investor or creditor.

On November 6, 2013, the Receiver filed a motion with the Court requesting a hearing on

the Receiver's Liquidation and Distribution Plan. The Court granted that motion and conducted

a hearing on December 5, 2013. To date the Court has not ruled upon the objection or the

proposed Liquidation and Distribution Plan. Once the Court issues its ruling the Receiver

intends to request the Court to authorize the Receiver to make an interim distribution to the

approved claimants.

8 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 9 of 10 PageID #: 1002

IV.

RECOMMENDATION FOR CONTINUATION OF RECEIVERSHIP

This is the second report from the Receiver and significant work remains for the Receiver

to do in this case, including selling the few remaining assets, recovering damages from third

parties as discussed herein, administering the investor and creditor claims, and making

distributions pursuant to a distribution plan to be approved by the Court. Accordingly, the

Receiver recommends the receivership continue.

Respectfully submitted January 6, 2014.

RECEIVER KELLY M. CRAWFORD

Is/ Kelly M Crawford Kelly M. Crawford, Receiver State Bar No. 05030700 500 North Akard Street, Suite 2700 Dallas, Texas 75201 (214) 706-4200- Telephone (214) 706-4242- Telecopier

9 Case 4:13-cv-00383-RAS-DDB Document 74 Filed 01/06/14 Page 10 of 10 PageID #: 1003

CERTIFICATE OF SERVICE The undersigned hereby certifies that on January 6, 2014 I electronically filed the foregoing document with the clerk of the U.S. District Court, Eastern District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a "Notice of Electronic Filing" to the following attorneys of record:

Janie L. Frank Meridian Propane LP Texas Bar No. 07363050 5645 Hillsborough Drive Securities and Exchange Commission Plano, Texas 75093 Burnett Plaza, Suite 1900 Relief Defendant 801 Cherry St., Unit #18 Fort Worth, TX 76102-6882 Edwin Tomko frankj@sec.gov Jason Ross Dykema Gossett, PLLC B. David Fraser 1717 Main St., Suite 4000 Texas Bar No. 24012654 Dallas, TX 75201 Securities and Exchange Commission Counsel for Kevin G. White, J(GW Capital Burnett Plaza, Suite 1900 Management, LLC, Revelation Forex 801 Cherry Street, Unit #18 Fund, LP, RFF GP, LP and W Corporate Fort Worth, TX 76102-6882 Real Estate, LP d/b/a KGW Real Estate fraserb@sec. gov Counsel for Plaintiff

Is/ Kellv M Crawford KELLY M. CRAWFORD

10 Tab E Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 1 of 9 PageID #: 1453

IN THE UNITED STATES DISTRICT COURT EASTERN DISTRICT OF TEXAS SHERMAN DIVISION

§ U.S. COMMODITY FUTURES TRADING § COMMISSION, § § Plaintiff, § Civil Action No. vs. § 4: 13-cv-382 § RFF GP, LLC, KGW CAPITAL § MANAGEMENT, LLC, and KEVIN § G. WHITE, § § Defendants, § § REVELATION FOREX FUND, LP, § MERIDIAN PROPANE LP, and § W CORPORATE REAL ESTATE, LP d/b/a § KGW REAL ESTATE § -------------------------------- §

SECOND STATUS REPORT OF THE RECEIVER

Kelly M. Crawford, as the court-appointed Receiver, submits the following second status

report pursuant to this Court's Order Granting Plaintiff's Ex Parte Emergency Motion for a

Statutory Restraining Order, Appointment of a Temporary Receiver, Expedited Discovery, an

Order to Show Cause Regarding a Preliminary Injunction, and Other Equitable Relief (the

"Statutory Restraining Order" or "SRO"). 1

1 The Receiver requests the Court to take judicial notice of the pleadings on file in this lawsuit.

1 Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 2 of 9 PageID #: 1454

The SRO directs the Receiver to submit an initial report and periodic reports thereafter to

the Court. More specifically, the SRO states:

"IT IS FURTHER ORDERED that the Temporary Receiver .... within sixty (60) days of being appointed and periodically thereafter, as directed by the Court, file with the Court and serve on the parties a report summarizing efforts to marshal and collect assets, administer the receivership estate, and otherwise perform the duties mandated by this Order."

SRO, § VI, -o E. On September 6, 2013, the Receiver filed his Initial Status Report [Docket No. 39] based

upon the period from the inception of the receivership on July 10, 2013 through September 6,

2013. This Second Status Report incorporates the information contained in the Initial Status

Report, and is based upon information obtained through December 31, 2013.

I.

SUMMARY OF THE OPERATIONS OF THE RECEIVER AND DESCRIPTION OF KNOWN RECEIVERSHIP PROPERTY AND CLAIMS HELD BY THE RECEIVERSHIP ESTATE

Since the filing of his Initial Status Report, the Receiver continued to identify assets

subject to the receivership, continued to liquidate receivership assets, investigated and developed

claims held by the Receivership Estate, and settled numerous claims for the benefit of the

Receivership Estate.

On October 16, 2013, the Receiver and his counsel interviewed Defendant Kevin White

at the office of Mr. White's counsel. Mr. White cooperated in the interview and the information

Mr. White shared with the Receiver helped the Receiver identify additional assets to recover and

assisted in the investigation of claims against third parties.

2 Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 3 of 9 PageID #: 1455

Based on the Receiver's interview with Mr. White, the Receiver discovered that a display

booth purchased with investor funds was being stored with the manufacturer of the booth in

Carrollton, Texas. Through the forensic accounting conducted by the Receiver's accounting

firm, the Receiver traced at least $40,000 of investor funds to The Trade Group, a company in

Carrollton, Texas that manufactures display booths for promotional events. Defendant White

had a display booth custom built to promote the Revelation Forex Fund and paid The Trade

Group $40,000 for the booth. After the booth was used by Defendant White, it was returned to

The Trade Group for storage. The Receiver confirmed the display booth was at The Trade

Group and the Receiver negotiated the sale of the display booth to an independent third party for

$6,000. From these sales proceeds, the Receiver paid The Trade Group $1,380 for the cost of

The Receiver determined that he had fraudulent conveyance claims against the family

members of Defendant Kevin White, and those persons who worked in the KGW Capital office

with Defendant White. The Receiver made demand upon them and they denied any liability to

the receivership. The Receiver successfully negotiated settlements with each of the persons the

Receiver alleged were recipients of fraudulent transfers, and such settlements were approved by

the Court.

With respect to the White family, the Receiver recovered from the daughter of Defendant

Kevin White approximately $7,000 from monies remaining in an account in the daughter's

name; a 2009 Chevrolet Tahoe being driven by the daughter; and a Sig Sauer hand gun given by

Defendant White to his daughter. The Receiver recovered from the son of Defendant White a

3 Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 4 of 9 PageID #: 1456

negligible sum ($13.00) remaining in a bank account in the son's name; and a shot gun given by

Defendant White to his son. A 2010 Toyota Tundra being driven by White's son had no equity

and was repossessed by the lender. The Receiver also obtained a release from Defendant

White's ex-wife of her claims against the receivership estate arising out of her divorce decree.

The Receiver also negotiated settlements with each of the persons who worked with

Steve McCraw is paying $71,000 over the next several months 2 ;

Cody Savage paid $42,100;

The settlement of these claims totaling $125,600, without the expense of protracted

litigation, will benefit the Receivership Estate and ultimately the approved claimants who are the

In the months of October, November, and December, 2013, the Receiver sold the

5. Miscellaneous personal property left over from the auction and fishing lures

for $16_6. _____

6.

4 Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 5 of 9 PageID #: 1457

The Receiver is still seeking buyers for the following receivership assets:

3. One shotgun and one Sig Sauer handgun, which the Receiver is seeking to sell

The Receiver continued investigating the role of other persons and entities, including

professionals, involved with KGW Capital, the Revelation Forex Fund, the solicitation of

investors in the fund, and/or the trading of the fund. The Receiver made demand upon Weaver

& Tidwell and the individual accountants who prepared the performance report of the account

managed by Brian Hinman that was used by Defendant White. In addition, the Receiver made

demand upon Sean Hyman whom the Receiver contends endorsed the Revelation Forex Fund for

In furtherance of the Receiver's investigation, on November 20, 2013 the Receiver's

counsel took the deposition of Brian Hinman, the person who traded the Revelation Forex Fund

and who was employed by FXCM. At the deposition Mr. Hinman invoked his 5th amendment

privilege in response to most of the questions. On December 30, 2013 the Receiver and his

counsel met in Chicago, Illinois with James Bibbings, a former auditor for the National Futures

Association, to determine the standards of the industry that should have been followed by FXCM

in dealing with Defendant White, KGW Capital, and the Revelation Forex Fund. The Receiver

recently made demand upon FXCM for the production of additional documents.

5 Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 6 of 9 PageID #: 1458

The Receiver also made demand upon Doug Conder (the CPA who prepared the K -1 's

issued to the investors) to pay to the receivership a sum equal to the cost to amend the tax

The Receiver received assignments of the claims against third parties from each of the

investors in the Revelation Forex Fund. The Receiver proposed to the Court as part of the

Receiver's liquidation plan that these claims against third parties be pursued on a reduced

To administer the receipt and disposition of monies in the receivership, the Receiver

opened receivership accounts at JP Morgan Chase and at Legacy Banlc The current balance of

the Legacy Bank Account is $28,535.91. Legacy Bank originally claimed a right of offset to

these monies based upon a loan Legacy Bank had made to a receivership entity that is in default,

but Legacy Bank, despite having actual notice of the need to file a creditor claim in the

receivership, failed to file a claim in the receivership and does not hold an approved claim in the

receivership. Accordingly, the Receiver contends such monies are available to the receivership.

The current balance held in the receivership account at Chase is $3,256,526.16. The Receiver

also has $40 cash on hand received from the sale of fishing lures that remains to be deposited

into the receivership account.

The accrued and unpaid administrative expenses from the inception of the receivership

through December 25, 2013 that have not been paid are approximately as follows: $37,965 in

Receiver's fees; $65,705.50 in Receiver's attorney's fees; $10,761.43 in expenses incurred; and

$5,509.10 in Receiver's accounting fees and expenses. In addition, a check payable to Platinum

6 Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 7 of 9 PageID #: 1459

Storage in the amount of $14 7 has not yet cleared the banlc As a result, the current balance of

unencumbered funds in the receivership account at Chase is approximately $3,136,438.10 3 . A

schedule of the Receiver's receipts and disbursements from the inception of the receivership

through January 3, 2014 is attached hereto as Exhibit A.

On October 9, 2013, the Receiver filed with the Court the Receiver's Proposed

Liquidation and Distribution Plan and established a procedure for investors and creditors to

submit claims to the Receiver; for the Receiver to make his recommendations regarding the

claims; and an opportunity for the investors and creditors to object to the Receiver's

On October 30, 2013, the Receiver filed his Report Regarding the Responses of Investors

and Creditors to the Receiver's Proposed Liquidation and Distribution Plan. This Report

included a list of the claims filed by the investors and creditors as well as the Receiver's

recommendations regarding the claims. As set forth in the Receiver's Report, no investors or

creditors objected to the Receiver's Proposed Liquidation Plan. One creditor, First Community

Bank, objected to the Receiver's Distribution Plan, which proposes to pay investors before

paying creditors. First Community Bank objected to the Receiver's proposal and argues that

creditors should be paid ahead of investors, or equally. No other objections were filed by any

On November 6, 2013, the Receiver filed a motion with the Court requesting a hearing on

the Receiver's Liquidation and Distribution Plan. The Court granted that motion and conducted

3 This balance is based upon the cash on hand as of January 3, 2014, and administrative expenses incurred as of December 25,2013.

7 Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 8 of 9 PageID #: 1460

a hearing on December 5, 2013. To date the Court has not ruled upon the objection or the

proposed Liquidation and Distribution Plan. Once the Court issues its ruling the Receiver

intends to request the Court to authorize the Receiver to make an interim distribution to the

IV. RECOMMENDATION FOR CONTINUATION OF RECEIVERSHIP

This is the second report from the Receiver and significant work remains for the Receiver

to do in this case, including selling the few remaining assets, recovering damages from third

parties as discussed herein, administering the investor and creditor claims, and making

distributions pursuant to a distribution plan to be approved by the Court. Accordingly, the

Is/ Kelly M Crawford Kelly M. Crawford, Receiver State Bar No. 05030700 500 North Akard Street, Suite 2700 Dallas, Texas 75201 (214) 706-4200- Telephone (214) 706-4242- Telecopier

8 Case 4:13-cv-00382-RAS-DDB Document 70 Filed 01/06/14 Page 9 of 9 PageID #: 1461

CERTIFICATE OF SERVICE The undersigned hereby certifies that on January 6, 2014 I electronically filed the foregoing document with the clerk of the U.S. District Court, Eastern District of Texas, using the electronic case filing system of the court. The electronic case filing system sent a "Notice of Electronic Filing" to the following attorneys of record:

Harry E. W edewer Meridian Propane LP John Einstman 5645 Hillsborough Drive U.S. Commodity Futures Trading Commission Plano, Texas 75093 Three Lafayette Centre Relief Defendant 1155 21st Street, N.W. Washington, D.C. 20581 Counsel for Plaintiff

Edwin Tomko Jason Ross Dykema Gossett, PLLC 1717 Main St., Suite 4000 Dallas, TX 75201 Counsel for RFF GP, LLC, KGW Capital Management, J(evin G. White, Revelation Forex Fund, LP, and W Corporate Real Estate, LP d/b/a KGW Real Estate

Is/ Kelly M Crawford KELLY M. CRAWFORD