Witter v. Commodity Futures Trading Commission

832 F.3d 745, 2016 U.S. App. LEXIS 14740, 2016 WL 4248218
CourtCourt of Appeals for the Seventh Circuit
DecidedAugust 10, 2016
DocketNo. 15-3535
StatusPublished
Cited by4 cases

This text of 832 F.3d 745 (Witter v. Commodity Futures Trading Commission) is published on Counsel Stack Legal Research, covering Court of Appeals for the Seventh Circuit primary law. Counsel Stack provides free access to over 12 million legal documents including statutes, case law, regulations, and constitutions.

Bluebook
Witter v. Commodity Futures Trading Commission, 832 F.3d 745, 2016 U.S. App. LEXIS 14740, 2016 WL 4248218 (7th Cir. 2016).

Opinion

WOOD, Chief Judge.

This is a tale of miseommunication. Our task is to decide where the resulting loss must fall. It involves some futures transac[747]*747tions that Dirk Witter, whose broker was TransAct Futures, was trying to stop. Witter contends that he telephoned Robert Skelton, an employee of TransAct, with instructions to cancel several standing orders. What is clear is that Skelton did not do so, and Witter lost $23,000 on the resulting market position. What is unclear is why Skelton did not act: Witter says that Skelton disregarded his instructions, but Skelton says that Witter never told him to cancel all seven of the working orders at issue. Witter filed a complaint against TransAct and Skelton with the Commodity Futures Trading Commission, see 7 U.S.C. § 18(a), but it found that neither one had violated the Commodity Exchange Act. See id. § 6(b). Witter has filed a petition for review from that decision, but we conclude that the Commission’s decision was supported by the evidence, and thus we deny the petition.

The events that preceded the disputed phone call began in the summer of 2007. Witter started using TransAct that summer to broker trades in the commodity-futures market. He usually placed his trades online, but he often had problems with his trading software, requiring him to call TransAct for help. On the night of August 16, 2007, his trading software stopped working. At the time, Witter had one open position (meaning that he was obligated to comply with the terms of a contract) in E-Mini S & P futures contracts. He also had seven working orders (standing instructions to enter into a contract if the market price reached a specified value), which he previously had set up using the trading software, for additional positions. After calls to the software company went unanswered, he phoned TransAct and spoke with Skelton, a customer support representative.

The parties recall this conversation differently. According to Witter, he gave Skelton two instructions: (1) place a stop-loss order (an instruction to limit his loss) on the open position in the E-Mini S & P, and (2) cancel all seven working orders. Skelton disputes the second instruction. According to Skelton, Witter told him to cancel only three of his seven working orders — those for Treasury and Dow Index futures contracts. Witter, he recalls, told him not to cancel the four working orders for E-Mini S&P contracts. TransAct says that it did not record this call.

A problem came to light the following morning. Witter was still unable to log into his trading software, and so he called TransAct to check on the status of his last trade. He spoke with another customer service representative, Tom Surico. When he asked Surico to “tell me what my current position is in the mini S & P’s,” Surico responded that he was “flat” and that he did not see a position. TransAct recorded this call. When Witter logged into his online account later that day, he noticed that its overall value had decreased by over $23,000. Believing this was an error, Witter called TransAct. An agent told him that the values were correct because he had lost money on a new trade that morning. Witter responded that he had not made any trades that morning and wondered if TransAct had failed to cancel all of his working orders. The agent replied that TransAct had not received instructions to that effect. Witter ordered TransAct to “check the tapes!” of his phone call, which, he said, would proye that he had asked TransAct to cancel Hie seven working orders. Witter later learned that TransAct had not recorded the critical call.

In his complaint to the Commission, Witter claimed that Transact and Skelton violated the Commodity Exchange Act. See 7 U.S.C. § 6b(a). He focused on their alleged failure to follow his instructions to cancel all working orders. As he put it, “I believe TransAct is lying.' I believe that [748]*748Rob [Skelton] made a mistake and can-celled 3 orders but failed to cancel the other 4.” He continued, “I believe that TransAct is lying [about not recording his phone call to Skelton], They have the recording of that conversation. The problem is that it verifies my story and proves them wrong.”

The case proceeded in stages. First, Witter invoked the Commission’s summary procedure, see 17 C.F.R. §§ 12.200-12.210, under which a judgment officer decides the case based on the parties’ verified written submissions, id. § 12.208, and, if necessary, a hearing, id. § 12.208-09. The judgment officer conducted a telephone hearing, at which both Witter and Skelton testified. After considering the evidence, the judgment officer dismissed the complaint, finding that Witter had failed to prove his allegations by a preponderance of that evidence. Both Witter and Skelton, he explained, testified sincerely — if “leavened with a bit of self-interest” — but overall he found that Skelton’s version was more plausible and Witter had a “propensity to confuse trading terms” like “position” and “order.” The judgment officer refused to draw an adverse inference based on TransAct’s failure to produce a recording of the “one crucial conversation” because TransAct was not required to record the call. Finally, he added, even if Surico had not reminded Witter about his working orders, Surico did not violate the Commodity Exchange Act; the phone recording reflected that Witter had asked Surico to focus only on the position that TransAct had closed the night before.

Witter appealed that adverse judgment to the Commission, see 17 C.F.R. § 12.210(e), which remanded the case for further discovery on whether TransAct had recorded the call between Witter and Skelton. A recording of that call, the Commission thought, would be the best evidence of whether Witter had instructed Skelton to cancel all his working orders. It noted, however, that if discovery about the recording proved fruitless, the Commission would find no clear error on the current record and defer to the judgment officer’s credibility analysis.

On remand, Witter submitted evidence that TransAct’s phones were capable of recording multiple calls simultaneously on a single handset. TransAct conceded that its phones had this capability and that it often records calls for training purposes. But, it explained, its system was configured to redirect some of its incoming calls from a handset already in use to a handset not in use, and redirected calls did not get recorded. When Witter called, Skelton “was currently on another line helping another account holder,” and the phone system redirected Witter’s call to a nonrec-ording line. Considering the new evidence, the judgment officer concluded that Witter had not shown by a preponderance of evidence that TransAct recorded the call. Skelton, the judgment officer found, was on his recorded line with another customer when Witter’s call came in, and Witter’s call was redirected to another handset that did not record the call. The judgment officer therefore declined to draw an adverse inference from TransAct’s inability to produce a recording of the call. Relying on his original credibility assessment, he dismissed the complaint. The Commission, seeing no error in the judgment officer’s findings, affirmed.

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Bluebook (online)
832 F.3d 745, 2016 U.S. App. LEXIS 14740, 2016 WL 4248218, Counsel Stack Legal Research, https://law.counselstack.com/opinion/witter-v-commodity-futures-trading-commission-ca7-2016.