Office of Proceedings 

In the Matter of: 

U.S. COMMODITY FUTURES TRADING COMMISSION 

Three Lafayette Centre 

1155 21st Street, NW, Washington, DC 20581 

www.cftc.gov 

Gordon A. Driver and 

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CFTC Docket No. SD 12-10 

Axcess Fund Management LLC, 

Registrants. 

INITIAL DECISION ON DEFAULT 

Before: Philip V. McGuire, 

Commodity Futures Trading Commission 

Appearances: W. Derek Shakabpa, Esq., Senior Trial Attorney, 

David Acevedo, Esq., Chief Trial Attorney 

CFTC Division of Enforcement 

New York, NY 

Background 

By motion dated December 7, 2012, the Commission's Division of Enforcement 

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("Division") has moved for entry of a default judgment against Gordon A. Driver ("Driver") and 

Axcess Fund Management LLC ("Axcess"), pursuant to Commission rules 3.60(g) and 1 0.93, 17 

C.P.R. §§ 3.60(g) and 10.93 (2012), based on the failure of Driver and Axcess to answer or 

otherwise to appear or respond to the Notice of Intent to Revoke the Registrations of Gordon A. 

Driver and Axcess Fund Management LLC ("Notice"), issued by the Commission on September 

25, 2012. Driver, a Nevada resident, is registered with the Commission as an associated person 
with, and listed as the sole principal of, Axcess, a Nevada limited liability company registered 

with the Commission as a commodity pool operator. 

The Commission's Notice alleges that Driver and Axcess are subject to statutory 

disqualification from Commission registration based on the summary judgment order and the 

final judgment and order of permanent injunction entered by the U.S. District Comi for the 

Central District of California on July 5 and 12, 2012, respectively. The Comi found that Driver 

and Ax cess had violated various provisions of the Commodity Exchange Act and certain 

Commission rules by operating a Ponzi scheme from February 2006 through May 2009, in 

fmiherance of which Driver and Axcess: fraudulently solicited over $14.3 million from over one 

hundred American and Canadian patiicipants; made materially false and misleading statements 

and omissions of material facts to pool patiicipants; and commingled pool funds and 

misappropriated pool funds for personal and business expenses, including Ponzi payments of 

about $9 million to several pool patiicipants as purpmied profits to conceal Driver's theft and 

trading losses. The Court pe1manently enjoined Driver and Axcess from violating the Act and 

Commission rules, as charged, imposed permanent trading and registration bans on Driver and 

Axcess, and ordered Driver and Axcess to pay over $9.5 million in restitution and a $31.8 

million civil monetary penalty. 

On September 25, 2012, the Commission's Office ofProceedings served the 

Commission's Notice on Driver at his last registered address 1 and on Axcess at its last registered 

address. 2 That same day, the Notice was served on Driver and Axcess at Driver's last known 

1 Driver's last listed address with the Commission is 3912 Diamond Ridge Street, Las Vegas, NV, 89129. See 

Guard Affidavit and Ce1iification, Exhibit 2, Division's December 7'11 motion. The Commission's Notice sent to 

this address was returned by the Post Office undelivered. Similarly, the Default Notice sent to this address was 

returned stamped "Unable to Forward" by the Post Office. 2 Axcess' last listed address with the Commission is 2251 N. Rampart Blvd, #265, Las Vegas, NV, 89128. See 

Guard Affidavit and Ce1iification, Exhibit I, Division's December 7'11 motion. The Commission's Notice sent to 

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address. 3 Thus, Driver and Axcess were properly served pursuant to CFTC rule 3.50.4 

Driver and Axcess did not respond to the Commission's Notice. Therefore, on 

November 8, 2012, I issued a Default Notice finding that Driver and Axcess were in default, and 

setting a deadline for the Division to file a motion for entry of a default judgment. On November 

8, 2012, the Commission's Office of Proceedings served the Default Notice on Driver and 

Axcess at their last registered addresses and at Driver's last known address. In addition, on 

November 14, 2012, the Division emailed a copy of the Default Notice to Driver. Driver and 

Axcess did not file a response to the Default Notice. Accordingly, this matter is ripe for entry of 

a default judgment. 

As a result of their defaults, Driver and Ax cess have waived a hearing on all of the issues 

and are precluded from introducing evidence of mitigation and rehabilitation necessary to 

overcome the presumption of unfitness for registration. 5 In addition, the well-plead allegations 

in the Notice, as augmented by the evidence produced by the Division, and as supplemented by 

the proposed findings and conclusions in the Division's motion, are deemed true and conclusive 

this address was reported as delivered by the Post Office. In contrast, the Default Notice sent to this address was 

returned stamped "Attempted Not Known" by the Post Office. 3 Driver's last known address is 2505 Anthem Village Drive, E400, Henderson, Nevada, 89052. The Commission's 

Notice and the Default Notice sent to this address were reported as delivered by the Post Office. 4 Pursuant to CFTC rule 3.30(a), 17 C.F.R. § 3.30(a) (20 12), the address of each registrant as submitted on its 

application for registration or as submitted on the biographical supplement shall be deemed to be the address for 

delivery to the registrant for any communications from the Commission, including any summons, complaint, notice 

and other written documents or correspondence, unless the registrant specifies another address for this purpose. 

CFTC rule 3.30(b ), 17 C.F.R. § 3.30(b) (20 12), provides that each registrant, while registered and for two years after 

the termination of registration, must notify the National Futures Association ("NF A") of any change of address, and 

that failure to do so may result in an order of default in any Commission or NF A proceedings. Moreover, pursuant 

to CFTC rule 3 .50, 17 C.F.R. § 3.50 (20 12), for purposes of an action for the denial, suspension or revocation of 

registration, service upon a registrant will be sufficient if mailed by registered mail or certified mail return receipt 

requested properly addressed to the registrant at the address shown on his application or any amendment thereto, and 

will be complete upon mailing. 5

The presumption of unfitness for registration under Section 8a(2) of the Act rests on the common-sense inference 

that once an individual or firm has undeJiaken serious wrongdoing- as it has been amply demonstrated that Driver 

and Ax cess have done -a substantial risk exists that the individual or firm will undertake similar wrongdoing in the 

future. See In re Akar, Comm. Fut. L. Rep.~ 22, 297 (CFTC February 24, 1986). 

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for purposes of finding: one, that Driver is statutorily disqualified from registration under 

Sections 8a(2)(C) and (E) of the Commodity Exchange Act ("Act"), as amended by the Food, 

Conservation, and Energy Act of 2008, Pub. L. No. II 0-246, Title XIII (the CFTC 

ReauthorizationActof2008 ("CRA")), §§ 13I02 13204,122 Stat.1651 (enacted June 18, 

2008), and the Dodd-Frank Wall Street Reform and Consumer Protection Act of2010, Pub. L. 

No. 111-203, Title VII (the Wall Street Transparency and Accountability Act of2010 (''DoddFrank Act")),§§ 701-774, 124 Stat. 1376 (enacted July 16, 2010), to be codified at 7 U.S.C. 

§§ 12a(2)(C), and (E); and two, that Axcess is statutorily disqualified under Sections 8a(2)(C), 

(E) and (H) of the Act, as amended by the CRA and the Dodd-Frank Act, to be codified at 7 

U.S.C §§ 12a(2)(C), (E) and (H). Thus, as set out below, the Division's motion has been 

granted, Driver and Axcess have been found to be unfit for registration and statutorily 

disqualified from registration, and the registrations of Driver and Axcess have been revoked. 

Findings of Fact 

1. Axcess Fund Management LLC, a Nevada limited liability company, has been 

registered with the Commission as a commodity pool operator since on or around July 25, 2008. 

Axcess is not a financial institution, registered broker dealer (or their associated person), 

insurance company, bank holding company, or investment bank holding company. 

2. Gordon A. Driver, a Nevada resident, has been registered as an associated person of 

Axcess since on or about September 3, 2008. Driver has been listed as the sole principal of 

Axcess and sole owner of a 10% or more financial interest in Ax cess. 

3. On May 14, 2009, the Commission filed a civil injunctive complaint in the U.S. 

District Comi for the Central District of California against Driver, and his two firms, Axcess 

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Fund Management LLC and Ax cess Automation LLC. 6 The Commission contended that 

Driver, in part through his corporate vehicles Axcess Automation and Axcess Fund 

Management, had operated a Ponzi scheme from February 2006 through May 2009, and that 

throughout the course of the scheme Driver: fraudulently solicited at least $14.3 million from 

over 100 participants in the United States and Canada to pmiicipate in commodity pools to trade 

commodity futures and options; sent pool pmiicipants false and misleading repmis and 

statements claiming profits, when in reality Driver had only two profitable trading months over a 

thirty-nine month period and had lost 94% of the funds actually traded; used only a small 

pmiion of the solicited funds for trading, and commingled and misappropriated the rest for his 

own personal and business expenses, including payouts to pool participants to maintain the 

charade of profitability; and acted as an unregistered commodity pool operator. CFTC v. 

Gordon A. Driver, Axcess Automation LLC, and Axcess Fund Management LLC, Case No. 09-

CV -0578 (ODW) (C.D. Cal.) ("CFTC v. Driver"). 

4. On July 5, 2012, in CFTC v. Driver, in response to an unopposed motion for summary 

judgment filed by the Commission, the Honorable Judge Otis D. Wright II entered an Order 

Granting Plaintiffs Motion for Summary Judgment ("Summary Judgment Order") which found, 

in relevant part, that Driver and Axcess: operated a Ponzi scheme from February 2006 through 

May 2009; fraudulently solicited over $14.3 million from over 100 pool pmiicipants; 

misrepresented Driver's trading track record, falsely reported profits ranging up to 20% a month; 

failed to disclose that Driver had traded only $3.7 million ofthe pool funds, had lost nearly all of 

those funds, and had only two out of thirty-nine profitable trading months; and commingled and 

misappropriated at least $1.6 million for personal expenses and about $9 million for Ponzi 

redemptions to conceal the fraud and the massive trading losses. The Court concluded 

6 Axcess Automation LLC was never registered with the Commission. 

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that the fraudulent conduct and misappropriation for the entire period violated Section 

4Q.(1)(A)-(B) of the Commodity Exchange Act ("Act"), 7 U.S.C. § 6Q.(1)(A)-(B), that 

the fraudulent conduct and misappropriation before June 18, 2008 violated Section 

4b(a)(2)(i)-(iii) of the Act, 7 U.S.C § 6b(a)(2)(i)-(iii), and that the fraudulent conduct 

and misappropriation on or after June 18, 2008 violated Section 4b(a)(l)(A)-(C) of the 

Act, as amended by the CRA, to be codified at 7 U.S.C § 6b(a)(l)(A)-(C). The Comi 

fmiher, in pe1iinent part: found that Driver had failed to register as a commodity pool operator 

in violation of Section 4m(l) of the Act, 7 U.S.C. § 6m(l); found that Driver had commingled 

pool funds with non-pool funds in violation of Commission rule 4.20( c), 17 C.F .R. § 4.20( c) 

(2012);7 found Driver liable for Axcess' violations of the Act and Commission rules as a 

controlling person pursuant to Section 13(b) of the Act, 7 U.S.C. § 13c(b); found Axcess liable 

for Driver's violations pursuant to Section 2(a)(l)(B) of the Act, 7 U.S.C § 2(a)(1)(B), and 

CFTC rule 1.2, 17 C.F.R § 1.2 (2012); granted the Commission's request for imposition of a 

restitution award of $9,562,488, and a civil monetary penalty of $31 ,800,000; and granted the 

Commission's request for a permanent injunction, trading ban and registration ban. 8 

5. On July 12, 2012, in CFTC v. Driver, Judge Wright entered a Final Judgment and 

Order of Permanent Injunction, Civil Monetary Penalty and other Equitable Relief against 

Driver, Axcess and Axcess Automation LLC ("Final Judgment and Order") which permanently 

enjoined Driver and Axcess: one, from further violations ofthe Act and Commission rules, 

including Section4b(a)(l)(A)-(C) of the Act as amended by the CRA and the Dodd-Frank Act, 7 

7 The Court also found that Axcess had failed to produce books and records in violation of Section 4n(3)(A) of the 

Act, 7 U.S.C. § 6n(3)(A), and Commission rule 1.3l(a), 17 C.F.R. §1.31(a) (2012). 8 In explaining his determination to enter a permanent injunction, Judge Wright noted, on top of defendants' past 

widespread fraudulent conduct: that Driver continued to advise customers and to solicit customers to buy his futures 

trading software in contempt of the Comi's order ofpreliminmy injunction; that Driver demonstrated no remorse 

for his actions or his victims' losses; and that Driver continued to insist that he was a successful and profitable 

futures trader despite overwhelming evidence to the contrary. See page 16, slip opinion. Thus, in essence, Judge 

Wright found that Driver continued to display the unmistakable traits of an unreconstructed Ponzi scheme operator. 

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U.S.C. § 6b(a)(l)(A)-(C), Section 4Q(l)(A)-(B), of the Act, 7 U.S.C. § 6Q(l)(A)-(B), CFTC rule 

4.20(c), 17 C.F.R. § 4.20(c), and Section 4m(l) of the Act, 7 U.S.C. § 6m(l); two, from entering 

into any transaction involving commodity futures, options on commodity futures, or commodity 

options for their own accounts or for any accounts in which they have a direct or indirect 

interest; and three, applying for registration or claiming exemption from registrations with the 

commission, except as provided for in Regulation 4.14(a)(9), 17 C.F.R § 4.14(a)(9) (2012). 9 

Conclusions of Law 

Section 8a(2)(C) of the Act 

Section 8a(2)(C) of the Commodity Exchange Act ("Act"), as amended by the CRA and 

the Dodd-Frank Act, to be codified at 7 U.S.C. § 12a(2)(C), in relevant pat1, authorizes the 

Commission to revoke the registration of any person "if such person is permanently or 

temporarily enjoined by order, judgment, or decree of any com1 of competent jurisdiction ... 

including an order entered pursuant to an agreement of settlement to which the Commission ... is 

a pm1y, from ... (i) acting as a futures commission merchant, introducing broker, floor broker, 

floor trader, commodity trading advisor, commodity pool operator, [or] associated person of any 

registrant under this Act ... or (ii) engaging in or continuing any activity when such activity 

involves ... fraud .... " Cause exists for statutory disqualification of Driver and Ax cess pursuant 

to Section 8a(2)(C) of the Act, because the Final Judgment and Order in CFTC v. Driver, which 

was entered by the United States District Com1 for the Central District of California, a court of 

9 In a related action, on December 14, 2009, after the U.S. Securities and Exchange Commission filed an injunctive 

complaint against Driver and Axcess Automation, Judge Wright issued separate judgments enjoining Driver and 

Ax cess Automation from violations of cetiain antifraud provisions of the Securities Exchange Act of 1934. SEC v. 

Gordon Driver, eta/., Case no. 09-cv-3410 (ODW) (C.D. Cal.). In another related action, the Ontario Securities 

Commission, on September 27, 20 12, issued a Decision finding that Driver and Axcess, among others, had 

knowingly perpetuated a fraudulent scheme in violation of the Ontario Securities Act. in the matter ofAxcess 

Automation LLC, eta/. 

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competent jurisdiction, permanently enjoins both Driver and Axcess from committing fraud in 

violation ofthe Act. 

Section 8a(2)(E) of the Act 

Section 8a(2)(E) of the Act, as amended by the CRA and the Dodd-Frank Act, to be 

codified at 7 U.S.C. § 12a(2)(E), in relevant pmi, authorizes the Commission to revoke the 

registration of any person "if such person, within ten years preceding the filing of the application 

[for registration] or any time thereafter, has been found in a proceeding brought by the 

Commission ... (i) to have violated any provision of [the] Act... where such violation involves ... 

fraud [or] misappropriation of funds ... " Cause also exists for statutory disqualification of Driver 

and Axcess pursuant to Section 8a(2)(E) of the Act, because the Summary Judgment Order in 

CFTC v. Driver found Driver and Axcess each to have violated the Act for conduct involving 

fraud and misappropriation. 

Section 8a(2)(H) of the Act 

Section 8a(2)(H) of the Act, as amended by the CRA and the Dodd-Frank Act, to be 

codified at 7 U.S.C. § 12a(2)(H), in relevant part, authorizes the Commission to revoke the 

registration of any person if "revocation of the registration of any principal of such person would 

be warranted because, of a statutory disqualification listed in this paragraph." Section 8a(2)(H) of 

the Act fmiher provides that the term "principal," as used in Section 8a(2) of the Act, includes a 

general pminer of a partnership or a person who owns more than 1 0% of the voting shares of a 

corporation. Because Driver is listed with the Commission as Axcess' sole principal, owns more 

than a 1 0% financial interest in Ax cess, and is subject to the revocation of his registration 

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pursuant to Sections 8a(2)(C) and (E) of the Act, Axcess' registration is also subject to 

revocation pursuant to Section 8a(2)(H) of the Act. 

ORDER 

Gordon A. Driver is statutorily disqualified from registration under Sections 8a(2)(C)and 

(E) of the Commodity Exchange Act, and Ax cess Fund Management LLC is statutorily 

disqualified under Sections 8a(2)(C), (E) and (H) of the Commodity Exchange Act. 

Accordingly: the Division's motion for entry of a default judgment is hereby granted; Gordon 

A. Driver and Axcess Fund Management LLC are unfit for registration; and the registration of 

Gordon A. Driver and the registration of Axcess Fund Management LLC are hereby revoked. 

Dated February 19,2013. 

114 ry /1/ '// .. :._ 

Philip V /McGuire, 

Judgment Officer 

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