Conway Family Trust, et al v. CFTC
Filed opinion of the court by Judge Easterbrook. The petition for review is DENIED. William J. Bauer, Circuit Judge; Frank H. Easterbrook, Circuit Judge and Diane S. Sykes, Circuit Judge. [6843543-1]  [16-3289]
United States Court of Appeals
For the Seventh Circuit
THE CONWAY FAMILY TRUST, by its trustees Michael H.
Conway III and Phyllis W. Conway,
COMMODITY FUTURES TRADING COMMISSION,
Petition for Review of an Order of the
Commodity Futures Trading Commission.
ARGUED MAY 18, 2017 — DECIDED MAY 25, 2017
Before BAUER, EASTERBROOK, and SYKES, Circuit Judges.
EASTERBROOK, Circuit Judge. During October 2008 the
Conway Family Trust lost some $3.6 million trading futures
contracts. Contending that errors by Dorman Trading, LLC,
a futures commission merchant, caused some of these losses,
the Trust asked the Commodity Futures Trading Commis‐
sion to order Dorman Trading to make reparation. A statute
authorizes the CFTC to provide relief for losses caused by
regulated persons’ violations of the Commodity Exchange
Act, but only if a claim is filed within two years of its accru‐
al. 7 U.S.C. §18(a)(1). The Trust did not present a claim until
October 2011, almost three years after it had closed its ac‐
count with Dorman Trading. The Commission dismissed the
claim as untimely.
Within two years of its losses the Trust did make a claim
for compensation—not with the Commission but with the
National Futures Association, which referred it to arbitra‐
tion. The panel of arbitrators awarded the Trust some
$500,000 against several respondents but ruled in favor of
Dorman Trading because the Trust’s contract with that entity
set a one‐year time limit for financial claims. Having lost
against Dorman Trading in one forum, the Trust sought a
better result from the Commission and contended that the
time devoted to pursuing relief through the Association
should be subtracted from the two years allowed to seek re‐
lief from the Commission. The Trust labeled this request one
for equitable tolling, and the Commission rejected it, observ‐
ing that nothing had prevented the Trust from starting a
reparations proceeding earlier.
A litigant who proposes that a statute of limitations be
equitably tolled must establish two elements: “(1) that he has
been pursuing his rights diligently, and (2) that some ex‐
traordinary circumstance stood in his way and prevented
timely filing.” Menominee Indian Tribe of Wisconsin v. United
States, 136 S. Ct. 750, 755 (2016), quoting from Holland v. Flor‐
ida, 560 U.S. 631, 649 (2010). The Trust did not establish ei‐
ther element—indeed, the Trust does not contend that it has
done so. The Trust knew about the trading losses as soon as
they occurred but did nothing for almost two years, when it
asked the Association rather than the Commission for relief.
That’s not diligent pursuit of the Commission’s processes.
And the Trust does not say that any circumstance, let alone
an extraordinary one, prevented timely filing.
Instead of trying to show how the Supreme Court’s re‐
quirements for equitable tolling have been satisfied, the
Trust contends that the arbitrator erred in applying the time
limit in its contract with Dorman Trading. The Trust believes
that this supposed error entitles it to a shot with the Com‐
mission. This is doubly wrong. First, arbitral awards are not
subject to collateral attack; we must assume that the panel’s
decision is sound. (Awards may be contested on the grounds
set out in the Federal Arbitration Act, 9 U.S.C. §10(a), but at
oral argument the Trust conceded that none of those ap‐
plies.) Second, the arbitral award, right or wrong, has noth‐
ing to do with equitable tolling. The criteria stated in Menom‐
inee Tribe concern reasons for delay, not reasons for desiring
another round of litigation.
Almost any losing litigant would prefer another shot at
victory. We need not consider whether sequential arbitral
and reparations proceedings ever are permissible. (Parallel
proceedings are not allowed, 17 C.F.R. §12.24(c), but the reg‐
ulation does not address sequential proceedings.) A litigant
who wants to preserve the option of requesting awards from
multiple bodies must at a minimum satisfy the time limits
that apply to each. The Trust did not do so and must bear the
consequences of its choice.
The petition for review is denied.
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