In a a civil enforcement action brought under the Commodity Exchange Act, district court judgment against defendant is affirmed where: 1) the Act not require a commodity pool operator to actually trade and make commodity futures transactions in its own name in order to be considered a community pool operator; 2) defendant's solicitation and receipt of funds for the purpose of trading futures contracts and its management of an investment vehicle placed it within the definition of a commodity pool operator; 3) the court did not err in concluding two defendants committed fraud under the Act as their knowledge of the falsity of their statements and disclosures showed they acted with scienter; 4) the court's properly concluded that such defendants were liable as controlling persons for defendant-entity's failure to register with the Commodities Futures Trading Commissions, as they knew about the registration requirement and continued to operate the fund without registering; and 5) one defendant's conduct sufficed to establish his liability for aiding and abetting another's violation.
Appeal from the United States District Court for the District of New Jersey.
Argued March 3, 2009
Filed July 13, 2009
Before: SCIRICA, Chief Judge, SLOVITER and HARDIMAN, Circuit Judges.
Opinion by SCIRICA, Chief Judge.
For Appellant: Robert W. Shimer, Vincent J. Firth
For Appellee: Martin B. White, Jeffrey A. Carr, J. Vernon Abernethy