United States District Court, N.D. Illinois, Eastern Division
U.S. Commodity Futures Trading Commission, Plaintiff,
Scott M. Ross, Maize Capital Management LLC, and Maize Asset Management, LLC, Defendants.
MEMORANDUM OPINION AND ORDER
JAMES B. ZAGEL, District Judge.
Plaintiff U.S. Commodity Futures Trading Commission (the "CFTC" or the "Commission") brings this action against Defendant Scott M. Ross and his companies, Maize Capital Management, LLC and Maize Asset Management, LLC (collectively "Defendants"). The CFTC seeks a supplemental order assessing restitution and a civil monetary penalty pursuant to Section 6c of the Commodity Exchange Act, 7 U.S.C. §§ 1 et seq. (2006) (the "Act"), as amended by the Food, Conservation, and Energy Act of 2008, Pub. L. No. 110-246, Title XIII, § 13101-13204, 122 Stat. 1651 (enacted June 18, 2008), and the Regulations promulgated thereunder, 17 C.F.R §§ 1.1 et seq. (2009).
I. Procedural History
The CFTC filed its original complaint against Defendants on September 4, 2009 (the "Complaint"). The Complaint alleged that Defendants violated numerous sections of the Act and sought a permanent injunction, civil penalties, and other injunctive and equitable relief. This matter was terminated when a Consent Order of Permanent Injunction and for Other Statutory and Equitable Relief (the "Consent Order") was entered against Defendants on June 23, 2010.
In the Consent Order, parties reserved the issue of determining appropriate restitution and monetary sanction and established that, in connection with this determination, the allegations of the Complaint and the findings and conclusions in the Consent Order shall be accepted as true and deemed true by the Court. This matter was reopened on January 8, 2014, for the limited purpose of imposing appropriate monetary penalties.
All of these facts originate from either the Complaint or the Consent Order and are therefore undisputed. From early 2007 through February 2009, Scott M. Ross operated several companies that purportedly invested in securities and engaged in currency trading. These companies conducted currency trading through a commodity pool (the "Fund") that was established in 2008.
In order to solicit participants, Defendants presented a fraudulent "pitchbook" and issued confidential private placement memorandum ("CPPM") that contained materially false and misleading statements regarding how the Fund would be administered. For example, Defendants misrepresented the percentage of customer funds that would be placed at risk at any one time. Additionally, although the Fund's prospectus claimed that its purpose was to "seek capital appreciation through commodities trading of foreign exchange, energy, precious metals and interest rate products, " trading in the Fund focused exclusively on currency trading. Defendants then exacerbated the fraudulent solicitations by sending out materially false and misleading account statements that represented realized gains in forex trading, but omitted unrealized losses from those account statements. Defendants solicited approximately 93 participants for the Fund who invested $6, 962, 395.07.
The United States Securities and Exchange Commission ("SEC") filed a complaint against Ross on February 3, 2009, that sought to enjoin him from violations of Section 10(b) of the Securities Exchange Act of 1934 and Rule 10b-5 thereunder. This Court entered an order freezing the assets of Ross and, among other entities, Maize Asset, Maize Capital, and the Fund. See SEC v. Ross, Civil Action No. 09-683 (N.D. Ill.). This Court further appointed Philip Stern as Receiver (the "Receiver") for Ross and all his assets, including Defendants, and the Fund. The Receiver secured total cash funds in the approximate amount of $2.7 million, including approximately $1, 035, 628 that was in the Fund at the time of his appointment. These funds were distributed to victims as a percentage share of their assets, based upon the investor's net contributions. Net contributions for all investors totaled approximately $11, 756, 366. The Receiver collected and distributed to 325 individuals a total of $2, 651, 522.01, after accounting for fees and expenses. Because Fund investors received a total of $1, 559, 576.18 from the distribution, total losses to Fund investors were $5, 402, 818.89.
On November 2, 2010, the United States Attorney Office for the Northern District of Illinois filed a criminal information against Ross. The United States charged Ross with fraud in connection with two of his investment scams, the Elucido fund and the Moondoggie fund, in violation of 18 U.S.C. § 1341. Pursuant to a plea agreement, Ross was sentenced to a prison term of 72 months, and ordered to pay restitution in the amount of $3, 699, 834.45 to the victims of those frauds. There was no provision in Ross's criminal settlement for restitution to victims of the Fund fraud.
In this matter, the CFTC seeks entry of a restitution order for the benefit of the victims of the Fund as well as a civil monetary penalty.
It is well established that equitable remedies such as restitution are available to remedy violations of the Act. CFTC v. Kimberlynn Creek Ranch, Inc., 276 F.3d 187, 193 (4th Cir. 2002); United States v. Universal Mgmt. Servs., Inc., 191 F.3d 750, 760 (6th Cir. 1999). Congress later codified this sentiment when it passed the Dodd-Frank Act of 2010. See Section 6c(d)(3) of the Act, 7 U.S.C. § 13a-1(d)(3) ("the court may impose, on a proper showing... (A) ...