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Full Opinion
ORDER
Before the Court is a Motion for Summary Judgment, filed on Mareh 11, 2011
I. FACTUAL BACKGROUND
Plaintiff is an Iowa corporation that is in the business of producing corn and both producing and selling soybeans and hogs. Def.’s Statement of Material Facts in Support of Mot. for Summ. J. (hereinafter “Defi’s Facts”) ¶¶ 1, 4; Pl.’s Resp. to Def.’s Facts ¶ 4. It was formed in 1992 by Scott Renaud (“Renaud”) and Abbie Renaud (collectively “the Renauds”), who are its sole officers, directors, and shareholders. Def.’s Facts ¶2. Renaud is the Plaintiffs sole employee. Id. ¶ 3. Renaud did not attend college, other than two eight-week programs for farmers. Pi’s Statement of Material Facts in Resp. to Def.’s Mot. for Summ. J. (hereinafter “Pi’s Facts”) ¶ 33. He did not have any formal training in hedging or risk management techniques, but had been involved in — and had prior experience with — commodities trading with three different brokers in years prior to 2007. Id.; Def.’s Resp. to Pl.’s Facts ¶ 33.
At some point in time, Howard Vroom (“Vroom”), a local feed salesman, introduced Renaud to Victor Aideyan (“Aideyan”),
In September 2007, Vroom arranged a meeting at Defendant’s Ames, Iowa office between Renaud, Aideyan, and Jack Ticky (“Ticky”), another employee of Defendant. Def.’s Facts ¶ 6. In attending this meeting, Renaud advised Aideyan that Plaintiff was increasing the size of its hog production and needed risk management advice. Pi’s Facts ¶ 8. Renaud wanted Aideyan and Ticky to explain how Defendant could help provide risk management services in relation to the corn he purchased to feed Plaintiffs hogs.
Shortly after the September 2007 meeting between Renaud, Aideyan, and Ticky, Renaud established and opened a commodities trading account with MF Global, Inc. (“MF Global”).
Renaud, at times, provided copies of Plaintiffs MF Global account statements so that Aideyan could monitor the trades made on the account. PL’s Facts ¶ 22; Def.’s Resp. to PL’s Facts ¶ 22. Aideyan acknowledged in his deposition that he regularly discussed trades with Renaud and that the trading strategy reflected in the MF Global account was the strategy developed by Defendant.
On February 24, 2009, Plaintiff unilaterally liquidated its positions and stopped obtaining and relying on advice from Defendant. Id. ¶ 23. Between September 20, 2007 and February 24, 2009, Plaintiffs ac
On December 8, 2009, Plaintiff filed a Complaint in this Court alleging that Defendant is liable to Plaintiff for violating the Commodity Exchange Act (“CEA”), 7 U.S.C. § 1 et seq. See Compl. ¶¶ 16-26. Specifically, Plaintiff claims that Defendant failed to disclose that it was required to register with the Commodity Futures Trading Commission (“CFTC”), but had not so registered, and additionally failed to disclose its trading experience and other material information required by the CFTC regulations.
II. STANDARD FOR SUMMARY JUDGMENT
The term “summary judgment” is something of a misnomer. See D. Brock Hornby, Summary Judgment Without Illusions, 13 Green Bag 2d 273 (Spring 2010). It “suggests a judicial process that is simple, abbreviated, and inexpensive,” while in reality, the process is complicated, time-consuming, and expensive.
Federal Rule of Civil Procedure 56(a) provides that “[a] party may move for summary judgment, identifying each claim or defense — or the part of each claim or defense — on which summary judgment is sought.”
Federal Rule of Civil Procedure 56 mandates the entry of summary judgment upon motion after there has been adequate time for discovery. Summary judgment is appropriately granted when the record, viewed in the light most favorable to the nonmoving party and giving that party the benefit of all reasonable inferences, shows that there is no genuine issue of material fact, and that the moving party is therefore entitled to judgment as a matter of law. See Fed.R.Civ.P. 56(a); Harlston v. McDonnell Douglas Corp., 37 F.3d 379, 382 (8th Cir.1994). The Court does not weigh the evidence, nor does it make credibility determinations. The Court only determines whether there are any disputed issues and, if so, whether those issues are both genuine and material. See Anderson v. Liberty Lobby, Inc., 477 U.S. 242, 252, 106 S.Ct. 2505, 91 L.Ed.2d 202 (1986); Wilson v. Myers, 823 F.2d 253, 256 (8th Cir.1987) (“Summary judgment is not designed to weed out dubious claims, but to eliminate those claims with no basis in material fact”) (citing Weight Watchers of Quebec, Ltd. v. Weight Watchers Int’l, Inc., 398 F.Supp. 1047, 1055 (E.D.N.Y. 1975)).
In a summary judgment motion, the moving party bears the initial burden of demonstrating the absence of a genuine issue of material fact based on the pleadings, depositions, answers to interrogatories, admissions on file, and affidavits, if any. See Celotex, 477 U.S. at 323, 106 S.Ct. 2548; Anderson, 477 U.S. at 248, 106 S.Ct. 2505. If the moving party has carried its burden, the nonmoving party must then go beyond its original pleadings and designate specific facts showing that there remains a genuine issue of material fact that needs to be resolved by a trial. See Fed.R.Civ.P. 56(c). This additional showing can be by affidavits, depositions, answers to interrogatories, or the admissions on file. Id.; Celotex, 477 U.S. at 322-23, 106 S.Ct. 2548; Anderson, 477 U.S. at 257, 106 S.Ct. 2505. “[T]he mere existence of
Courts do not treat summary judgment as if it were a paper trial. Therefore, a “district court’s role in deciding the motion is not to sift, through the evidence, pondering the nuances and inconsistencies, and decide whom to believe.” Waldridge v. Am. Hoechst Corp., 24 F.3d 918, 920 (7th Cir.1994). In a motion for summary judgment, the Court’s job is only to decide, based on the evidentiary record that accompanies the moving and resistance filings of the parties, whether there really is any material dispute of fact that still requires a trial. See id. (citing Anderson, 477 U.S. at 249, 106 S.Ct. 2505 and 10 Charles A. Wright & Arthur R. Miller, Federal Practice & Procedure § 2712 (3d ed.1998)).
III. LAW AND ANALYSIS
A. Plaintiff’s Claim for Commodity Exchange Act Violation
The CEA provides, in pertinent part:
(1) Any person (other than a registered entity or registered -futures association) who violates this chapter or who willfully aids, abets, counsels, induces, or procures the commission of a violation of this- chapter shall be liable for actual damages resulting from one or more of the transactions referred to in subparagraphs (A) through (D) of this paragraph and caused by such violation to any other person—
(A) who received trading advice from such person for a fee.
7 U.S.C. § 25(a)(1). Thus, to prevail on its claim against Defendant for a CEA violation, Plaintiff must demonstrate, among other things, that Defendant violated a provision of the CEA and that Plaintiff sustained “actual damages” that were “caused by such violation” when it received trading advice from Defendant for a fee.
According to Count I of Plaintiffs Complaint, Defendant violated the CEA by failing to register with the CFTC as a commodity trading advisor (“CTA”).
In that case, Ping He sought the return of $350,000 it had deposited into a commodity trading futures account with NonFerrous Metals (U.S.A.) Inc. (“NFM”), alleging that NFM had violated the CEA in various ways, including by failing to register as a futures commission merchant (“FCM”) under § 4d of the CEA. See 22 F.Supp.2d at 99; 7 U.S.C. § 6d. The district court rejected Ping He’s § 4d claim, finding:
Ping He offers no evidence or basis for believing that it incurred damages simply by dealing with an unregistered FCM. As a logical matter, it is unlikely that any private litigant could show ‘actual damages’ flowing from a § 4d violation because, as courts and the CFTC have recognized, an FCM’s unregistered status, in and of itself, does not cause another financial damage. See Marshall v. Green Giant Co., 942 F.2d 539, 546 (8th Cir.1991) (“A party does not suffer damage merely by dealing with an unregistered FCM; failure to register, without more, does not cause pecuniary loss.”); Hofmayer v. Dean Witter & Co., Inc., 459 F.Supp. 733, 739 & n. 4 (N.D.Cal.1978) (“[t]he mere failure to register does not amount to fraud, deceit or misrepresentation sufficient to justify rescission____[A] causal connection between the failure to register and the damage would have to be alleged.”); Hall v. Paine Webber Jackson & Curtis, Inc., [1986-1987 Transfer Binder] Comm. Fut. L. Rep (CCH) ¶ 23,317, at 32,890 n. 4 (Oct. 8, 1986) (customer’s damages were not proximately caused by violation of registration provision).
Plaintiff counters that the quoted language from Ping He does nothing to defeat its case because the court recognized that, “[i]f Ping He can assert any damages claim based upon NFM’s unregistered status, it is one under § 4b
Even assuming that Plaintiff has adequately pleaded a fraudulent inducement claim,
Proximate causation generally requires evidence that a defendant’s conduct was not only the “but for” cause of a plaintiffs damages, but was also a “substantial factor” in bringing about such damages. See Eighth Circuit Model Jury Instruction 8.35 (2011) (“[T]he term ‘proximate cause’ means a cause of damage or injury that played a substantial part in bringing about the injury or damage. The injury or damage must have been either a direct result of or a reasonable probable consequence of the cause and except for the cause the injury would not have occurred.”). While Plaintiff has arguably demonstrated “but for” causation by alleging that it would not have contracted with Defendant had it known Defendant was not registered as a CTA, it has failed to demonstrate that Defendant’s failure to register was a “substantial factor” in bringing about the Plaintiffs loss. That is, even assuming that Plaintiff would not have relied on Defendant to advise it in regard to commodity trading “but for” Defendant’s failure to advise of its non-registered status, Plaintiff has presented no evidence that Defendant’s lack of CTA registration made it reasonably probable that Plaintiff would sustain losses by relying on Defendant’s advice. See Steen v. Monex Int’l Ltd., No. 84-R339, Comm. Fut. L. Rep. P 25245, 1992 WL 41433, at *5 (C.F.T.C. Mar. 3, 1992) (finding probable cause where: “1) respondent’s violative conduct was a substantial factor in bringing about complainant’s loss and 2) the loss was a reasonably probable consequence of respondent’s conduct”).
The court’s conclusion that the CEA requires some causation showing beyond “but for” causation is bolstered by the rulings of courts finding that § 4b of the CEA “incorporates the common law principle that one who misrepresents [or omits] a material fact is liable only for those losses flowing from actions reasonably induced (‘caused’) by the misrepresentation
[A] plaintiff proceeding with a claim under section 4b must show “loss causation.” Whereas a showing that the plaintiffs reliance induced him or her to enter into the transaction (“but for” allegations) satisfies the “transaction causation” requirement, loss causation, on the other hand, requires a direct or proximate relationship between the loss and the misrepresentation or omission and may not be supplied by but for allegations. Wilson v. Ruffa & Hanover, P.C., 844 F.2d 81, 86 (2d Cir.1988).
Waters v. Int’l Precious Metals Corp., 172 F.R.D. 479, 490 (S.D.Fla.1996); see also Kearney v. Prudential-Bache Secs. Inc., 701 F.Supp. 416, 426 (S.D.N.Y.1988) (“[I]n order for a misrepresentation to be actionable under the Securities Exchange Act and the Commodity Exchange Act, it must be fundamental to the nature of a particular securities or commodity trading device.”); Muniz v. Lassila, No. 87-R395, Comm. Fut. L. Rep. P 25,225, 1992 WL 10629, at *6 (C.F.T.C. Jan. 17, 1992) (“It is self-evident that every customer loss does not result from injurious conduct____It is also evident ... that not all violations of the Act cause harm to customers. Even when a statutory violation and customer losses are present in the same set of circumstances, a cause-and-effect relationship is not automatically assumed.”).
The Court recognizes that in Waters, the district court stated, “in an action under the CEA, a plaintiff may satisfy the loss causation requirement that the loss be directly related to the misrepresentation or omission by showing that the decision to invest was induced
Likewise, in Garnatz v. Stifel, Nicolaus & Co., Inc., the Eighth Circuit permitted rescissory damages where the defendant induced a plaintiff to participate in a special bond margin account program by misrepresenting the profit and loss risks associated with investing in the program. 559 F.2d 1357, 1360-61 (8th Cir.1977) (emphasis added) (noting that the plaintiff specifically relied on defendant’s statements that there was no risk to the plaintiffs capital, that the bonds purchased would not decrease more than 1% in, value, that the interest rate would never exceed 8%, and that purchases recommended by the defendant would be without risk). The
It is this “natural, proximate, and foreseeable” component of causation that is ultimately lacking from Plaintiffs bald “but for” causation assertion. In cases such as those discussed, where risks of commodities trading remain undisclosed or are misrepresented, it is easy to see how an unsuspecting investor could foreseeably sustain losses far beyond those reasonably expected absent the misrepresentations or omissions. Without diminishing the importance of registration under the CEA, however, the same cannot be said of a registration violation, i.e., the mere fact that an advisor is required to be registered, but is not, does not naturally, proximately, and foreseeably support a belief that an investor will be financially damaged by relying on the unregistered advis- or’s advice. To accept Plaintiffs arguments of causation in this case would transform the failure to register into a strict liability tort. That is, whenever an investor experiences losses in commodities trades, it can hold its advisor liable for any and all losses merely by discovering a registration violation and claiming that it would not have transacted business with the advisor had it known of the violation.
The requirement of more than “but for” causation in the context of Plaintiffs fraud claim in this case is further supported by the statutory language that creates the CEA cause of action. In Hudson v. Wilhelm, the Court emphasized the fact that recovery under the CEA can only be had pursuant to 7 U.S.C. § 25, which provides that a person who violates the CEA shall be liable “for actual damages ... caused by such violation.” 651 F.Supp. 1062,
Plaintiff contends causation is “clearly present, since plaintiff would have never permitted the defendants to illegally trade on her account if she had known that the defendants were not properly registered in commodities futures.” Plaintiff seems to be arguing a “but for” type of causation in this sentence. Had she known of the registration deficiencies, she would not have allowed defendants to trade on her account. This argument, however, tacitly concedes plaintiffs monetary losses are not themselves the direct result of defendants’ registration improprieties. Instead, plaintiff argues she never would have incurred the losses in the first place because, had she known of the registration problem, she would not have permitted defendants to handle her money at all. The legal import of this argument is to transform the eighth claim for relief into a claim for misrepresentation. Plaintiff is not alleging her monetary losses were caused by defendants’ failure to register properly. Rather, she is contending her pecuniary damages were occasioned by defendants’ concealment of possible registration problems.
Id. at 1068; see also Biedron v. Futures, No. 87C8425, 1989 WL 134796, at *4 (N.D.Ill.1989) (“Biedron does not say how the fact that Dorsey was not registered served to cause him, Biedron, to suffer financial loss. Even, if Biedron intended ... to say that had he known that Dorsey was not registered he would never have consented to having his account traded by him, it still would not suffice to state a claim under the CEA. That line of argument suggests that Dorsey’s failure to be registered serves as a but for cause of Biedron’s losses, not a proximate cause.”).
Since Plaintiff may only recover actual damages caused by the Defendant’s failure to register, there must be some evidence beyond “but for” causation linking Plaintiffs damages to the Defendant’s registration requirements. No such evidence exists in this case. Indeed, Renaud has testified that, to this day, he does not even know what the CEA is. See Def.’s App. at 8-9. Likewise, Plaintiffs expert, Nicolas Zagotta (“Zagotta”), has testified that he did not consider the lack of registration in any way in his analysis of the case.
Plaintiffs Complaint makes the following specific allegations in relation to the breach of fiduciary duty claim:
27. S & A repleads paragraphs 1-15 as if fully set out herein.
28. Defendants offered S & A commodities trading advice. In marketing themselves, Defendants represented to S & A that they had education, training and experience above that of S & A.
29. Defendants represented to S & A that their superior abilities enabled them to provide essential price and risk management advice.
30. Defendants created a relationship of trust and confidence in their abilities based on their represented experience, education, and training.
31. S & A relied upon the alleged superior price and risk management ability of Defendants.
32. S & A did not have nearly the same education, training or experience as Defendants represented they had.
33. Defendants dominated the relationship with regard to price and risk management advice.
34. Defendants breached their fiduciary duty.
35. Defendants breach of its fiduciary duty was a proximate cause of damage to S & A.
36. S & A was financially injured in an amount greatly exceeding the jurisdictional amount.
Compl. at 4-5.
To sustain its claim for breach of fiduciary duty, Plaintiff bears the burden of proving: 1) the existence of a fiduciary relationship; 2) Defendant breached a fiduciary duty to Plaintiff; 3) Defendant’s breach of its fiduciary duty to Plaintiff was a proximate cause of damage to the Plaintiff; and 4) the amount of damage. See Iowa Jury Ins. 3200.1. Defendant contends that Plaintiff has failed to sustain its burden in a variety of ways. Specifically, Defendant points out that Plaintiff “had not stated or established what exactly Defendants’ alleged fiduciary duty was, nor has Plaintiff put forth evidence as to how such duty was allegedly breached by Defendants.” Def.’s Br. at 12. Moreover, Defendant contends that Plaintiff has failed to put forth evidence that would establish that Defendant’s actions proximately caused any damage to Plaintiff. Id. at 13.
1. Standard of care and breach.
The Court agrees with Defendant that Plaintiffs breach of fiduciary claim
To determine whether Defendant breached its fiduciary duty to Plaintiff, a jury will be required to determine the scope and extent of the duty owed. The jury will be further obligated to determine whether Defendant’s conduct was deficient with regard to the applicable standard of care. The Iowa Supreme Court has stated:
Persons engaged in the practice of a profession or trade are held to the standard of “ ‘the skill and knowledge normally possessed by members of that profession or trade in good standing in similar communities.’ ” Kastler v. Iowa Methodist Hosp., 193 N.W.2d 98, 101 (Iowa 1971) (quoting Restatement (Second) of Torts § 283 (1965)). The burden rested upon [the plaintiff] to prove [the professional’s] breach of this standard' of care. See Devine v. Wilson, 373 N.W.2d 155, 157 (Iowa App.1985). Unless a professional’s lack of care is so obvious as to be within the comprehension of a layperson, the standard of care and its breach must ordinarily be established through expert testimony. Perin v. Hayne, 210 N.W.2d 609, 613 (Iowa 1973); Devine, 373 N.W.2d at 157.
Humiston Grain Co. v. Rowley Interstate Transp. Co., Inc., Additional Information