U.S. Commodity Futures Trading Commission v. Reisinger et al

Filing 163

MOTION by Defendant Grace Elizabeth Reisinger for judgment As A Matter Of Law At The Close Of Evidence (Nissen, William)

IN THE UNITED STATES DISTRICT COURT
NORTHERN DISTRICT OF ILLINOIS
U.S. Commodity Futures Trading
Commission,
Plaintiff,
v.
Grace Elizabeth Reisinger and
ROF Consulting, LLC,
Defendants.

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) No. 11 C 8567
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) Judge Joan B. Gottschall
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DEFENDANT REISINGER’S MOTION FOR JUDGMENT AS
A MATTER OF LAW AT THE CLOSE OF THE EVIDENCE
Pursuant to Rule 50(a), Fed. R. Civ. P., defendant Reisinger hereby moves for judgment
as a matter of law on the issues identified below on the ground that a reasonable jury would not
have a legally sufficient evidentiary basis to find for the plaintiff on these issues.
1.

Each of Counts 1 through 3 requires plaintiff to prove that defendant made a

material misrepresentation or omission. A reasonable jury would not have a legally sufficient
evidentiary basis to find that defendant Reisinger made any material misrepresentations or
omissions to any participant in the NCCN commodity pool and therefore judgment should be
entered as a matter of law in favor of defendant and against plaintiff on Counts 1 – 3. See
authorities cited in Memorandum Opinion and Order, 7/18/13 (Doc. 67) at 18-22.
2.

Each of Counts 3 through 6 requires plaintiff to prove that defendant was

commodity pool operator of the NCCN commodity pool. A reasonable jury would not have a
legally sufficient evidentiary basis to find that defendant Reisinger was commodity pool operator
for the NCCN commodity pool and therefore judgment should be entered as a matter of law in

favor of defendant and against plaintiff on Counts 3 – 6. See authorities cited in Memorandum
Opinion and Order, 7/18/13 (Doc. 67) at 20-27.
a.

Under 7 U.S.C. §1a(5) (2000 Ed. and Supplement IV (1/3/2005)), a commodity

pool operator means:
7 USC 1a(5) Commodity pool operator
The term “commodity pool operator” means any person engaged in
a business that is of the nature of an investment trust, syndicate, or
similar form of enterprise, and who, in connection therewith,
solicits, accepts, or receives from others, funds, securities, or
property, either directly or through capital contributions, the sale of
stock or other forms of securities, or otherwise, for the purpose of
trading in any commodity for future delivery on or subject to the
rules of any contract market or derivatives transaction execution
facility, except that the term does not include such persons not
within the intent of the definition of the term as the Commission
may specify by rule, regulation, or order.
2000 Ed. and Supplement IV (1/3/2005)
b.

The undisputed evidence is that funds for commodity trading were received from

investors by ROF Consulting, LLC (“ROF”) or NCCN, LLC (“NCCN”) and not by Reisinger
personally.
c.

The undisputed evidence is that funds resulting from commodity trading were

disbursed to investors by ROF or NCCN, and not by Reisinger personally.
d.

Plaintiff CFTC has alleged and obtained a default judgment against ROF on the

ground that it was a commodity pool operator for the NCCN commodity pool.
e.

The undisputed evidence is that Reisinger’s activities on behalf of the NCCN pool

were either as agent for ROF or NCCN and not in her personal capacity.
3.

A reasonable jury would not have a legally sufficient basis to find that defendant

Reisinger was controlling person of ROF and therefore judgment should be entered in favor of

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defendant against plaintiff as a matter of law on plaintiff’s claim that defendant is liable for
violations of ROF as controlling person.
a.

The undisputed evidence is that ROF had four member-managers, and Reisinger

was only one of these four persons.
b.

The undisputed evidence is that Alan Matthews had control over ROF’s and

NCCN’s bank accounts, which precluded Reisinger from being the controlling person in relation
to the receipt and disbursement of pool participant funds, which is central to the definition of a
commodity pool operator. See 7 U.S.C. § 1a(5) (2000 Ed. and Supplement IV (1/3/2005)).
c.

There is no evidence that Reisinger solicited funds, securities, or property from

prospective participants in the NCCN commodity pool.
WHEREFORE, defendant prays for an order granting judgment as a matter of law in
favor of defendant and against plaintiff on all Counts of the Complaint, and for such other and
further relief as may be just and proper.
Date: September 12, 2016
s/ William J. Nissen
William Nissen
Angelo J. Suozzi
Sidley Austin LLP
One South Dearborn Street
Chicago, IL 60603
p: [phone]
f: [phone]
[e-mail]
[e-mail]
Attorneys For Defendant
Grace Elizabeth Reisinger

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CERTIFICATE OF SERVICE
I, William J. Nissen, an attorney, hereby certify that I have served copies of the
foregoing Defendant Reisinger’s Motion for Judgment As a Matter of Law upon the
following individuals by the Court’s ECF system on the 12th day of September, 2016.
Timothy J. Mulreany
U.S. Commodity Futures Trading Commission
Division of Enforcement
Three Lafayette Center
1155 21st Street, N.W.
Washington, D.C. 20581
[e-mail]
Elizabeth N. Pendleton
U.S. Commodity Futures Trading Commission
Division of Enforcement
525 West Monroe Street
Suite 1100
Chicago, IL 60661
[e-mail]

s/ William J. Nissen
William J. Nissen