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ROCHE v. E.F. HUTTON & CO.

June 15, 1984

William ROCHE, et al., Plaintiffs,
v.
E.F. HUTTON & CO., INC., et al., Defendants



The opinion of the court was delivered by: NEALON

 NEALON, Chief Judge.

 The plaintiffs commenced the above-captioned civil action on October 3, 1983, asserting causes of action under the Commodity Exchange Act (the Act), the Racketeer Influenced and Corrupt Organizations Act of 1970 (RICO), the Securities Exchange Act of 1934 (the '34 Act) and the rules and regulations of the Commodity Futures Trading Commission (CFTC) and the Securities and Exchange Commission (SEC). The plaintiffs claim that they have suffered major losses in the commodities and securities markets as a result of the defendants' alleged mishandling of their discretionary trading accounts. They seek, inter alia, treble damages and attorneys' fees.

 The defendants have moved to dismiss. For the reasons set forth below, the defendants' motions will be granted as to Counts VIII and IX with leave for the plaintiffs to amend and denied as to all other counts.

 FACTUAL BACKGROUND

 Initially, the court notes that the allegations contained in the complaint must be accepted as true for purposes of this motion. See, e.g., McKnight v. Southeastern Transp. Authority, 583 F.2d 1229, 1235-36 (3d Cir.1978).

 Defendant Thomas Clark allegedly advised the plaintiffs that defendant Tony Watson, also a Hutton employee, was "an expert" in the field of commodities, had been extremely successful in trading futures and had, in fact, realized substantial gains for the benefit of other investors as well. The plaintiffs assert that Clark told them that if they entrusted their money to Watson, they would experience no losses. Indeed, Clark represented, Watson would personally guarantee success by depositing his own funds in any account that suffered a loss. Purportedly as a result of these assurances, the plaintiffs each deposited substantial sums into commodities accounts with Hutton and agreed that the defendants would have total discretion in making the trading decisions. It is alleged that during the remainder of 1980 and into 1981, the defendants "churned" the plaintiffs' commodities accounts by effecting an excessive number of trades without regard to the investors' needs and for the sole purpose of generating commissions for Watson, the Clarks and Hutton.

 The Clarks reported to the plaintiffs that large profits were being made on their accounts. The plaintiffs' monthly statements, however, began to show losses. The plaintiffs allege that when questioned about this, the Clarks falsely represented to them that the monthly written statements for the accounts were inaccurate because of bookkeeping delays. In addition, the plaintiffs assert, they were told that Watson was experiencing some personal problems which affected his ability to trade effectively, but that, if the accounts remained open, sufficient amounts would soon be deposited to cover the losses. Eventually, the plaintiffs lost nearly all of the sums invested in their accounts and defendant Watson never deposited any funds to cover their losses.

 DISCUSSION

 Count I

 In Count I of the complaint, the plaintiffs attempt to state a claim under the Commodity Exchange Act to redress the defendants' alleged churning of their accounts. The defendants move to dismiss this count on the ground that churning does not violate the antifraud provisions of the Act. *fn1" Relying upon cases decided under Rule 10b-5, *fn2" the defendants assert that the plaintiffs' churning claim must be dismissed on the ground that "mere allegations of 'churning' do not properly state claims of fraud under the Commodity Exchange Act where plaintiffs concede that they expressly authorized defendants to engage in commodities transactions in their discretion, thereby entrusting the decision making to defendants." Memorandum of Law in Support of Defendants' Motion to Dismiss at 10, Document 12 of the Record. The defendants argue that the traditional element of "deception" which must be present in 10b-5 actions is absent here. In addition, the defendants contend that the requisite element of "reliance" is absent in that "it is clear that [the plaintiffs] did not rely on any misstatements or omissions in connection with any commodity futures transaction made or proposed to be made in their accounts." Id. at 10-11.

 For nearly 15 years it has been settled law that allegations of "churning" state a valid cause of action for fraud under Rule 10b-5 and § 10(b) of the '34 Act. See, e.g., Booth v. Peavey Company Commodity Services, 430 F.2d 132, 133 (8th Cir.1970); Johnson v. Arthur Espey, Shearson, Hammill & Co., 341 F. Supp. 764, 766 (S.D.N.Y.1972); Hecht v. Harris, Upham & Co., 283 F. Supp. 417, 437 (N.D. Cal.1968), aff'd, 430 F.2d 1202 (9th Cir.1970). The defendants assert, however, that "many of the decisions cited by plaintiffs which appear to uphold a claim of 'churning' . . . predate the decision of the Supreme Court in Santa Fe Industries, Inc. v. Green, 430 U.S. 462, 97 S. Ct. 1292, 51 L. Ed. 2d 480 (1977), and therefore are inapposite." Reply Memorandum in Support of Defendants' Motion to Dismiss the Complaint at 8, Document 19 of the Record. In Santa Fe, the Supreme Court observed that "the language of § 10(b) gives no indication that Congress meant to prohibit any conduct not involving manipulation or deception." 430 U.S. at 473, 97 S. Ct. at 1301. Accordingly, the Court held that a simple breach of fiduciary duty, without more, does not rise to the level of a 10b-5 violation merely because it occurs in connection with a securities transaction. Id. at 472, 97 S. Ct. at 1300. See generally Note, Suits for Breach of Fiduciary Duty Under Rule 10b-5 After Santa Fe Industries, Inc. v. Green, 91 Harv.L.Rev. 1874 (1978). In light of the Supreme Court's more restrictive view of Rule 10b-5 in Santa Fe, the defendants assert that the early churning cases must be reexamined in light of that later case. Reply Memorandum at 9.

 The defendants' position relies upon the premise that churning amounts only to a breach of fiduciary obligations and does not involve deception. This is a misconception. Churning "is in the nature of a constructive fraud and constitutes a deceptive scheme under Rule 10b-5." Gleit v. Shearson, Hammill & Co., Inc., [1977]Fed.Sec.L.Rep. P 95,799 at 90,889 (S.D.N.Y. 1976). As stated in the seminal case of ...


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