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Commodity Futures Trading Commission 

CEA CASES 

NAME: ASA V. WILDER 

CITATION: 28 Agric. Dec. 1403 

DOCKET NUMBER: 154 

DATE: NOVEMBER 4, 1969 

DOCUMENT TYPE: DECISION AND ORDER 

(No. 12,814) 

In re ASA V. WILDER. CEA Docket No. 154. Decided November 4, 1969. 

Deceiving customers -- False reports -- Losses -- Denial of trading 

privileges

Respondent's actions in selectively applying futures contracts in the account 

of a customer so that larger profits or smaller losses than actually existed 

were reported to the customer, thus deceiving the customer as to the actual 

amount of losses, are violations of the act for which all the contract markets 

shall refuse all trading privileges to the respondent for a period of three 

years. 

Earl L. Saunders for Commodity Exchange Authority. 

Respondent pro se.

Donald F. X. Finn, New York, N.Y., for intervenor, Mrs. Bertha Hecht. 

John Curry, Hearing Examiner. 

Decision by Thomas J. Flavin, Judicial Officer

DECISION AND ORDER

In this proceeding under the Commodity Exchange Act (7 U.S.C. Chap. 1), 

Hearing Examiner John Curry issued a recommended decision and order on April 28, 

1969. After considerable difficulty in getting service of a copy upon 

respondent, this was finally accomplished on October 14, 1969. A letter to 

Hearing Examiner Curry from respondent objected to the conclusions in the 

recommended decision and asked that the case be dropped. 

At the hearing upon the complaint respondent did not appear, no appearance 

was made through a representative and no evidence was introduced on his behalf. 

The letter to Hearing Examiner Curry lacks merit and upon consideration of 

the entire record, the hearing examiner's recommended decision and order are 

adopted as the final decision and order herein, the order to become effective 

December 8, 1969. 

Copies hereof shall be served upon the parties and upon the contract markets 

under the act. 

HEARING EXAMINER'S RECOMMENDED DECISION AND ORDER 

PRELIMINARY STATEMENT

This is an administrative proceeding under the Commodity Exchange Act (7 

U.S.C. 1 et seq.), hereinafter referred to as the act, instituted by a complaint 

and notice of hearing issued under section 6(b) of the act (7 U.S.C. 9) on April 

8, 1968, by the Assistant Secretary of Agriculture. The respondent is an 

individual, who at the time of the matters involved herein was the manager of 
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the commodity operations of the San Francisco, California, office of Harris, 

Upham & Co., a stock and commodity brokerage firm. 

The principal allegations of the complaint are as follows: The respondent, 

while employed as the manager of the commodity operations of the San Francisco 

office of Harris, Upham & Co., personally handled the stock and commodity 

futures trading accounts of one Mrs. Bertha Hecht, a customer of that firm, and 

in so doing gained her confidence to the extent that the trading in such 

accounts was conducted on the respondent's advice or at his discretion. Acting 

for the purpose and with the intent of concealing from Mrs. Bertha Hecht the 

extent of the losses sustained by her in trading in commodity futures, the 

respondent: (1) in 14 instances during the period February 20, 1963 through July 

25, 1963, selectively closed out certain offsetting long and short futures 

transactions for her account in a manner which reflected larger profits or 

smaller losses than would have resulted had the oldest trades been closed out 

and thereby for a period of time concealed from Mrs. Bertha Hecht the actual 

amount of her losses; and (2) on or about March 29, 1963, prepared and delivered 

a "SUMMARY OF OPERATIONS" statement to Mrs. Bertha Hecht purportedly showing the 

status of her trading accounts as of such date but did not show in such 

statement and concealed from Mrs. Hecht the fact that as of March 29, 1963, she 

had unrealized 

losses in her commodity futures trading account of over $ 34,000. The complaint 

charges that, by reason of such facts, "the respondent, in connection with the 

disposition or execution of commodity futures contracts, and in regard to acts 

of agency performed with respect to such contracts, deceived the person on 

behalf of whom such contracts were made, in wilful violation of section 4b of 

the Commodity Exchange Act (7 U.S.C. 6b); and applied and closed out offsetting 

long and short positions in wilful violation of section 1.46 of the regulations 

issued under the said act (17 CFR 1.46)." 

The respondent filed an answer to the complaint. In his answer the 

respondent does not deny that the trading in the accounts of Mrs. Bertha Hecht 

was conducted on the respondent's advice or at his discretion, nor that he 

selectively closed out the futures transactions in question as described in the 

complaint. Nor does the respondent deny that he prepared and delivered to Mrs. 

Bertha Hecht on or about March 29, 1963, the "SUMMARY OF OPERATIONS" statement 

described in the complaint. By way of explanation, however, the respondent 

states in his answer that: "any close-outs of commodity futures contracts other 

than the oldest positions were made at the verbal request of Mrs. Hecht to show 

the profits whenever possible and to ride-out her paper losses to the last. 

Whenever confronted with a paper loss she would comment substantially as 

follows: there is plenty of time before the contract expires, there is no need 

to take the loss now." With respect to the "SUMMARY OF OPERATIONS" statement of 

March 29, 1963, the respondent states in his answer that this statement "was 

picked from a number of reports made to Mrs. Hecht, all of which were prepared 

on the same basis showing only the credit balance in her commodity account 

without showing either unrealized gains or unrealized losses." 

The oral hearing was held in Washington, D. C. on September 17, 1968. John 

J. Curry, Office of Hearing Examiners, United States Department of Agriculture, 

was assigned as referee and presided at the hearing. Earl L. Saunders, Office 

of the General Counsel of the Department, appeared for the complainant. The 

respondent did not appear in person at the hearing and there was no appearance 

on his behalf. No evidence was adduced on behalf of the respondent by 

deposition or otherwise. Charles E. Robinson, Director of the Compliance 

Division of the Commodity Exchange Authority, testified for the complainant and 

26 exhibits were received in evidence on behalf of the complainant. 

The referee granted the complainant's motion that official notice be taken in 

this proceeding of the transcript of the trial in the case of Hecht v. Harris, 
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Upham & Co., N. D. Calif., 283 F. Supp. 417 (1968), n1 and certain excerpts from 

the testimony appearing in that transcript were received in evidence in this 

proceeding. 

n1. Bertha Hecht, Plaintiff, v. Harris, Upham & Co., a partnership, 

Harris, Upham & Co., Inc., a corporation, Arthur R. Mejia, Asa V. Wilder, 

George Upham Harris, Henry Upham Harris, Jr., Frank L. Patty, et al.,

Defendants. The transcript of the trial in this case is cited herein as 

"(Court Transcript )" 

At the outset of the hearing, a petition to intervene was filed on behalf of 

Mrs. Bertha Hecht. This petition was granted by the referee and Mrs. Bertha 

Hecht was represented at the hearing by Donald F. X. Finn, Attorney at Law, 63 

Wall Street, New York City. Six exhibits were received in evidence on behalf of 

the intervenor. During the course of the hearing, counsel for the intervenor 

made an oral motion that Harris, Upham & Co., Inc. n2 be made a party respondent 

in this proceeding (Tr. 67, 72). The referee denied the motion (Tr. 72-74, 

113). After the close of the hearing, counsel for the intervenor filed a 

written motion that Harris, Upham & Co., Inc. be made a party respondent in this 

proceeding. Complainant filed a reply to the intervenor's motion. A brief was 

filed by the complainant after the close of the hearing. 

n2. At the time of the matters involved herein, Harris, Upham & Co. was 

a partnership. On or about September 1, 1965, a new corporation, Harris, 

Upham & Co., Inc., took over the business formerly conducted by the 

partnership of Harris, Upham & Co. (Court Transcript 171-172). 

PROPOSED FINDINGS OF FACT

1. The respondent, Asa V. Wilder, is an individual, who at all times material 

herein, was the manager of the commodity operations of the San Francisco, 

California, office of Harris, Upham & Co., a brokerage firm dealing in 

securities and commodities. The said firm was at all times material herein a 

registered futures commission merchant under the act and entitled to membership 

privileges on the Board of Trade of the City of Chicago and various other 

contract markets (Tr. 17; Complaint, par. 1). 

2. Mrs. Bertha Hecht, a resident of San Mateo, California, is now 78 years of 

age and a retired widow, her husband having died on January 12, 1955. During 

the relevant period of this case, she maintained stock and commodity futures 

trading accounts at Harris, Upham & Co. At that time she was inexperienced in 

futures trading and had little or no knowledge in that field. 

After the death of her husband, there was a progressive deterioration of Mrs. 

Hecht's mental and physical well-being and she was treated on a number of 

occasions for various nervous or mental disorders (Tr. 17-18, 50-52, 98-101; 

Comp. Ex. 19, 20, 23; Court Transcript 300-382, 748-811, 1798, 1806-1808, 1810-

1811, 1853, 1887, 2451, 2470-2472, 2702-2705, 2735, 2912-2913). 

3. The Board of Trade of the City of Chicago is now and was at all times 

material herein a duly designated contract market under the act. The 

transactions in soybean, wheat and rye futures hereinafter described were made 

on or subject to the rules of the Board of Trade of the City of Chicago and were 

speculative. Such transactions were capable of being used for hedging 

transactions in interstate commerce in such commodities or the products or byproducts thereof, or for determining the price basis of transactions in 

interstate commerce in such commodities or the products or by-products thereof, 

or for delivering such commodities sold, shipped, or received in interstate 

commerce (Tr. 33, 101-102). 

4. At all times material herein, the respondent personally handled the stock 

and commodity futures trading accounts of Mrs. Bertha Hecht at Harris, Upham & 

Co., and in so doing gained her confidence to the extent that the trading in 
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such accounts was conducted on the respondent's advice or at his discretion (Tr. 

18, 92-93). 

5. In 14 instances during the period February 20, 1963 through July 25, 1963, 

in closing out offsetting transactions in soybean, wheat and rye futures for the 

account of Mrs. Bertha Hecht, the respondent selectively closed out certain 

transactions in a manner which reflected larger profits or smaller losses than 

would have resulted if the transactions had not been closed out selectively (Tr. 

34). In the usual course of business and in conformity with section 1.46 of the 

regulations under the act (17 CFR 1.46), Harris, Upham & Co. prepared and 

delivered to Mrs. Bertha Hecht, in connection with the close out of each such 

transaction, a purchase and sale statement showing the financial results of such 

close out (Tr. 27-28, 46). With respect to such purchase and sale statements, 

the following table shows the date of each such statement, the transaction that 

was offset thereon against the previously held position, the financial results 

that would have been shown on such statement if the offsetting transaction had 

been applied to the oldest portion of the previously held position (Comp. Ex. 1-

14; Tr. 19-34; Answer, par. 1): 

See original document-page 5 

Date Offsetting Transaction Profit or Loss Profit or Loss 

1963 Shown on If Oldest Trades Had 

P & S Statement Been Closed Out 

Profit Loss Profit Loss 

February 20 Sale 20,000 bushels $ 1,327.25 $ 2,477.25

 March 1963 soybeans March 13 Purchase 20,000 bushels $ 660.25 2,546.00

 July 1963 soybeans 

March 14 Purchase 20,000 bushels 354.00 $ 4.00 July 1963 soybeans March 15 Purchase 20,000 bushels 274.00 501.00

 May 1963 wheat 

March 22 Sale 10,000 bushels 106.00 637.75

 July 1963 wheat March 28 Sale 10,000 bushels 68.50 681.50

 July 1963 wheat March 28 Sale 20,000 bushels 370.50 6,442.00

 May 1963 soybeans March 28 Sale 10,000 bushels 89.50 2,098.00

 August 1963 soybeans April 18 Sale 20,000 bushels 104.00 2,346.00

 May 1963 soybeans May 8 Sale 20,000 bushels 129.00 3,446.00

 August 1963 soybeans May 15 Purchase 10,000 bushels 168.50 544.00

 May 1963 rye 

May 21 Purchase 20,000 bushels 133.00 567.00

 July 1963 soybeans May 28 Purchase 20,000 bushels 204.00 196.00

 July 1963 soybeans 

July 25 Sale 50,000 bushels 1,010.00 5,340.00

 August 1963 soybeans 

 

6. On or about March 29, 1963, the respondent prepared and delivered a 

"SUMMARY OF OPERATIONS" statement to Mrs. Bertha Hecht purportedly showing the 

status of her trading accounts as of such date, but the respondent did not show 

in such statement and concealed from Mrs. Hecht the fact that as of March 29, 

1963, she had unrealized losses in her commodity futures trading account of $ 

34,306.25 (Comp. Ex. 15, 16, 21, 24; Tr. 34-44, 56-57; Court Transcript 76-82, 

1279-1281, 1325-1326). 

7. The respondent selectively closed out the transactions, described in 

Finding of Fact 5, and prepared and delivered to Mrs. Bertha Hecht the "SUMMARY 
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OF OPERATIONS" statement, described in Finding of Fact 6, for the purpose and 

with the intent of concealing from her the extent of the losses sustained by her 

in trading in commodity futures, and thereby did conceal from Mrs. Bertha Hecht 

the extent of such losses (Tr. 46-47, 94-95, 97-98). 

PROPOSED CONCLUSIONS

I

During the relevant period of this case, section 4b of the act (7 U.S.C. 6b) 

declares it to be unlawful "for any member of a contract market, or for any 

correspondent, agent, or employee of any member, in or in connection with any 

order to make, or the making of . . . any contract of sale of any commodity for 

future delivery made, or to be made . . . for or on behalf of any person . . . 

(C) wilfully to deceive or attempt to deceive such person by any means 

whatsoever in regard to any such order or contract or the disposition or 

execution of any such order or contract, or in regard to any act of agency 

performed with respect to such order or contract for such person." 

During the relevant period of this case, section 1.46 of the regulations (17 

CFR 1.46), insofar as pertinent, read as follows: 

Application and closing out of offsetting long and short positions. (a) 

Application of purchases and sales. Any futures commission merchant who, on or 

subject to the rules of a contract market: 

(1) shall purchase any commodity for future delivery for the account of any 

customer (other than the "Customers' Account" of another futures commission 

merchant) when the account of such customer at the time of 

such purchase has a short position in the same future of the same commodity on 

the same market, or 

(2) shall sell any commodity for future delivery for the account of any 

customer (other than the "Customers' Account" of another futures commission 

merchant) when the account of such customer at the time of such sale has a long 

position in the same future of the same commodity on the same market, shall on 

the same day apply such purchase or sale against such previously held short or 

long position, as the case may be, and shall promptly furnish such customer a 

purchase and sale statement, or account sale, showing the financial result of 

the transactions involved. 

(b) Customer's instructions. In all instances wherein the short or long 

position in such customer's account immediately prior to such offsetting 

purchase or sale is greater than the quantity purchased or sold, the futures 

commission merchant shall apply such offsetting purchase or sale to such portion 

of the previously held short or long position as may be specified by the 

customer. In the absence of specific instructions from the customer, the 

futures commission merchant shall apply such offsetting purchase or sale to the 

oldest portion of the previously held short or long position, as the case may 

be. n3 

n3 Section 4b of the act was amended on February 19, 1968, and section 

1.46 of the regulations was amended on April 18, 1966, but the amendments 

are not relevant here. The matters involved occurred and were prohibited 

prior to the amendments and after the amendments. 

The evidence in this case proves beyond question that Mrs. Bertha Hecht's 

comprehension of futures trading was virtually nil, that she relied completely 

on the respondent to decide what futures transactions were made for her account, 

and that her knowledge of the financial results of the futures trading in her 

account was limited to the information shown on the purchase and sale statements 

rendered to her by Harris, Upham & Co. (Tr. 46-47, 52-55, 94-95, 97-98; Comp. 

Ex. 22, 23, 25, 26; Court Transcript 173-175, 394-398, 1179-1184, 1142, 1129, 

1436-1438, 1808, 1809, 2451, 2470-2472, 2702-2705, 2735, 2783). Indeed, the 
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respondent has admitted that every futures transaction that was made for Mrs. 

Hecht's account was made on his recommendation or at his discretion (Comp. Ex. 

22; Court Transcript 1436-1438). In his answer to the complaint, the respondent 

does not 

deny the fact that the trading in Mrs. Hecht's accounts was conducted on his 

advice or at his discretion. He claims, however, that he selectively closed out 

the transactions in question "at the verbal request of Mrs. Hecht to show 

profits whenever possible and to ride out her paper losses to the last" and that 

"[whenever] confronted with a paper loss she [Mrs. Hecht] would comment 

substantially as follows: there is plenty of time before the contract expires, 

there is no need to take the loss now" (Answer, par. 1). With respect to the 

merit of such a claim, it is simply not credible that a person such as Mrs. 

Hecht, who lacked any knowledge in the field of futures trading and who relied 

completely on another person to decide what transactions were made for her 

account, would have decided the manner in which her transactions were offset. 

There was no advantage to Mrs. Hecht in having her transactions offset 

selectively and no credible motivation can be advanced for offsetting her 

transactions in this manner except that the respondent wanted to conceal from 

Mrs. Hecht the extent of her losses. In this connection, Charles E. Robinson, 

Director of the Compliance Division of the Commodity Exchange Authority, 

testified (Tr. 44-45): 

In my opinion there is no advantage to Mrs. Hecht to have her trades 

selectively closed out. The investigation disclosed that she was on a calendar 

year tax basis. Now the only time, in my experience, that there has been an 

advantage from selective closing out of trades has been in connection with tax 

purposes, but the investigation disclosed no possible tax advantage to Mrs. 

Hecht in the selective closing out of trades, so that in my opinion there was no 

advantage. 

Continuing, Mr. Robinson testified that in his opinion the only possible 

reason for selectively closing out the transactions in question was "to conceal 

from her [Mrs. Hecht] for a period of time the extent of her losses, to put off 

the day of reckoning, and to keep her happy for a while longer" (Tr. 47). Mr. 

Robinson made clear in his testimony the respondent's motivation for keeping 

Mrs. Hecht "happy". His testimony, in this respect, is as follows (Tr. 47-48): 

According to information furnished the Commodity Exchange Authority by 

Harris, Upham & Co., Mr. Wilder, when he was employed in May of 1957, was 

employed at a salary of $ 1250 a month. The letter goes on -- I am reading from 

a letter of December 5, 1967 from Harris, Upham & Co. 

to the Commodity Exchange -- it says "Administration". "Commissions received by 

the firm from transactions that Mr. Wilder accomplished for his customers in 

securities and commodities were substantially in excess of his salary. 

Therefore, in fairness to Mr. Wilder, in March 1961 the salary was increased to 

$ 1500 a month and he was paid a bonus of $ 5,000 in June of that year." Then 

the letter goes on to state: "In March 1963 his salary was reduced to $ 1250 a 

month. This was because he had been less active. He had become 65 and the 

volume of his business had declined through 1962 and 1963." Now in this letter 

they state that his salary was reduced in March 1963 because he had become less 

active. These selective close-outs occurred during the period from February 

20th through July 25, 1963, and this "Summary of Operations," Complainant's 

Exhibit 16, was rendered as of March 29, 1963, so it seems quite apparent to me 

that he could very well have had a motive here that his salary is being cut 

because of having less business and he wanted to keep Mrs. Hecht happy as long 

as he could because he might lose her account. 

In his answer, the respondent stated that he selectively closed out the 

transactions in question in accordance with Mrs. Bertha Hecht's instruction "to 
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show profits whenever possible". However, the respondent did not act in 

accordance with such an instruction. As shown in Finding of Fact 5, the 

offsetting sale of February 20, 1963, was selectively applied so as to decrease 

the apparent size of a loss, not to show a profit instead of a loss. Further, 

as shown in Finding of Fact 5, the offsetting purchase of March 14, 1963, was 

selectively applied so as to increase the apparent size of a profit, not to show 

a profit instead of a loss. 

The facts and circumstances in this record compel the conclusion that as 

charged in the complaint, the respondent deceived Mrs. Bertha Hecht in wilful 

violation of section 4b of the act (7 U.S.C. 6b), and applied and closed out 

offsetting long and short positions in wilful violation of section 1.46 of the 

regulations (17 CFR 1.46). The respondent's offenses were deliberate, serious 

and flagrant and cannot be too strongly condemned. They were contrary to the 

principles of honesty and fair dealing and violated basic provisions of the act. 

Section 4b of the act is a basic part of the measures designed for the 

protection of customers of futures commission merchants. Considering all of the 

 

facts and circumstances of this case, including the recommendation of the agency 

charged with administering the provisions of the Commodity Exchange Act, it is 

concluded that in order to effectuate the purposes of the act, the respondent 

should be denied all trading privileges on all contract markets for a period of 

three years. 

II

As previously stated at page 4 hereof, official notice was taken of the 

transcript of the trial in the case of Bertha Hecht v. Harris, Upham & Co., et 

al., N.D. Calif., 283 F. Supp. 417 (1968). In that case plaintiff Bertha Hecht, 

a widow of 77 years of age, instituted an action against Harris, Upham & Co., 

Harris, Upham & Co., Inc., Asa V. Wilder and others to recover $ 1,109,000 

damages arising from the defendants' fraudulent handling of her securities and 

commodities accounts and their breach of fiduciary duties. After a 27 day trial 

without a jury a Memorandum of Decision in favor of Bertha Hecht was rendered 

and a judgment entered thereon in the amount of $ 504,391.02 against Harris, 

Upham & Co., Harris, Upham & Co., Inc. and Asa V. Wilder. 

In the course of the administrative hearing counsel for the Intervenor Bertha 

Hecht made a motion to amend the complaint to include Harris, Upham & Co., et 

al., as parties respondent. In such motion and elsewhere counsel averred the 

record shows: (1) that Harris, Upham & Co. violated the Commodity Exchange Act 

by cheating and deceiving Mrs. Hecht and by failing to institute and maintain an 

adequate system of supervision of its San Francisco and New York offices; (2) 

that all P&S instructions, close-out instructions, and requests to determine the 

buying power in the account were wired by Mr. Wilder over Harris, Upham & Co.'s 

private wire system from San Francisco to various individuals in New York; (3) 

that close-outs were actually effectuated in New York by someone other than Mr. 

Wilder; (4) that the New York office of Harris, Upham & Co. had the primary and 

ultimate responsibility for maintaining an adequate system of supervision and 

internal control in order to protect customers against fraud and to ensure 

against violation of Commodity Exchange Act rules and regulations; (5) that even 

in the absence of actual knowledge, Harris, Upham & Co. is responsible to 

exercise reasonable supervision, and it is not at all clear nor is there any 

real proof that Harris, Upham & Co. has taken any 

 

corrective action which will ensure the exercise of reasonable supervision in 

the future; and (6) that officials of Harris, Upham & Co. in New York had or 

should have had actual knowledge of the selective close-out scheme and of the 

churning and unsuitable transactions in Mrs. Hecht's account.

In reply to the motion, counsel for the Complainant stated for the record 

that the Commodity Exchange Authority has taken corrective action to avoid a re-
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occurrence of the activities involved in this administrative proceeding; that 

the evidence does not reveal that any official of Harris, Upham & Co., other 

than Asa V. Wilder, had knowledge of these activities; and that in view of these 

circumstances and the lapse of time since the activities took place, it is the 

view of the Commodity Exchange Authority that it is not necessary to include 

Harris, Upham & Co. as a party respondent in this administrative proceeding in 

order to effectuate the purposes of the Commodity Exchange Act (Tr. pp. 68, 69). 

The Referee denied the motion to join Harris, Upham & Co., et al., as 

respondents, stating that he had no authority under the Rules of Practice to 

amend the complaint which had been issued by an Assistant Secretary of 

Agriculture, but added that counsel in due course could file such a motion with 

the proper authority. Subsequently, counsel on September 30, 1968 filed a 

written motion with the Referee again requesting joinder of the aforesaid 

parties as respondents, and on December 16, 1968, the Referee certified the 

Motion to the Secretary for decision, as provided by the rules of practice 

governing proceedings under the act. On February 11, 1969, the Commodity 

Exchange Authority informed Counsel for Intervenor by letter that, "We submitted 

your motion on behalf of Mrs. Bertha Hecht to the Assistant Secretary with the 

recommendation that it be denied. In so doing, we restated our position as set 

forth at the oral hearing and in our answer to the Motion. On January 14, 1969, 

the Assistant Secretary concurred in our recommendation and denied the motion." 

All contentions of the parties presented for the record have been considered 

and whether or not specifically mentioned herein, any suggestions, requests, 

etc., inconsistent with this decision are denied. 

PROPOSED ORDER

Effective 30 days after the receipt of this Order, the said Asa V. Wilder is 

prohibited from trading on or subject to the rules of any contract market for a 

period of three (3) years, and all contract markets shall refuse all trading 

privileges to him for the said period of three years, such prohibition and 

refusal to apply to all trading done and positions held by the said Asa V. 

Wilder directly or indirectly whether for his own account or for the account of 

other persons. 

A copy of this decision and order shall be served upon the parties and upon 

each contract market. 

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