U.S. COMMODITY FUTURES TRADING COMMISSION 

Three Lafayette Centre 

Office of Proceedings 

SUSAN M. ELLIOTT, 

Complainant, 

v. 

JAY DE BRADLEY, 

GLENN TRASK MOORE, 

MALIK ILORI SIEVERS, and 

F ARR INVESTMENTS, LLC, 

Respondents. 

1155 21st Street, NW, Washington, DC 20581 

www.cftc.gov 

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* CFTC Docket No. 11-R004 

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ORDER GRANTING SUMMARY DISPOSITION 

and 

DISMISSING COMPLAINT 

Introduction 

The gravamen of Susan M. Elliott's complaint, filed in October 2010, is that respondents 

misrepresented the risks associated with two managed futures accounts traded by two commodity 

trading advisors, Parr Investments LLC ("Parr") and Clarke Capital Management. 1 Elliott also 

alleges that Glenn Moore- shortly after she had closed the Clarke account in early 2006, and 

shmily after her Fan account had experienced sharp losses in March 2007 and February 2008 --

had lulled her with false assurances that Farr could recoup her losses. Elliott seeks to recover 

over $136,000 in out-of-pocket losses from both accounts and has named as respondents: Fan 

Investments LLC, which became defunct in January 2010 around the same time that it closed 

1 On June 29,2011, after an extended pleading phase, this case was assigned to the docket of Judge Levine. Six 

days later, on July 5, 20 II, Elliott filed a motion to disqualify Judge Levine and sought interlocutory review by the 

Commission soon after he had promptly denied her motion. The matter remained pending before the Commission 

for six months until January 3, 2012, when the Commission determined that Elliott's motion had been mooted by 

Judge Levine's retirement in December 2011, and remanded this matter for assignment to my docket. 

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Elliott's then-dormant account; Malik Ilori Sievers, a principal and associated person with Fan; 

MF Global, Incorporated d/b/a Fox Investments ("MF Global"), a now-defunct futures 

commission merchant that carried Elliott's accounts;2 and Glenn Trask Moore and Jay De 

Bradley, associated persons with MF Global. 

In response: MF Global filed an answer; Bradley and Moore each filed an answer that 

was nearly identical to M.F. Global's answer; and Farrand Sievers filed a joint answer. All 

respondents raised the two-year statute of limitations affirmative defense. Bradley and Moore 

have filed a motion for summary disposition based on the two-year statute oflimitations set out 

in Section 14(a)(l) ofthe Commodity Exchange Act. Since Farrand Sievers raised statute of 

limitations affirmative defense in their answer, they are deemed to have joined Bradley and 

Moore's motion. Elliott has filed an opposition to the motion, arguing that the statute of 

limitations did not begin to run until April 201 0 when she met with an attorney who advised her 

that respondents' conduct appeared to be wrongful and actionable. 

As explained below, respondents' motion for summary disposition has been granted, and 

the complaint has been dismissed on grounds that it is barred by the statute of limitations. 

Factual Findings 

The parties 

1. Susan Elliott, a resident of Chicago, Illinois, was a retired former employee of True 

Value Hardware when she opened her account with respondents. On her account application, she 

indicated that she was self-employed as a home health care specialist, and that she had a 

Bachelor of Sciences Degree in Education and a Master's Degree in Human Resources 

2 On October 31,2011, while this matter was pending on interlocutory review before the Commission, the U.S. 

District Court for the Southern District ofNew York granted the petition of the Security Investor Protection 

Corporations to place MF Global into liquidation. On Janumy II, 2012, after this matter had been assigned to my 

docket, I dismissed MF Global from the proceeding pursuant to CFTC rule 12.24. 

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Management and Development. When she opened her account in February 2005, she was fiftyseven years old and her investment experience had been limited to owning an annuity and 

making an annual selection for her retirement plan. [~~ 1 and 15 of Elliott's Revised Complaint; 

Farr Investments Client Questionnaire, Exhibit A, Elliott's Revised Complaint; and Man 

Financial's Account Application, Exhibit A, MF Global's Answer.] 

2. MF Global, Incorporated, fonnerly doing business as Man Financial, Incorporated, was 

at the relevant time a Chicago-based futures commission merchant. Fox Investments was a 

division ofMF Global. MF Global carried Elliott's Clarke and Fan accounts and timely 

provided Elliott with daily confirmation statements and month-end account summary statements, 

which accurately reported trading activity and account status, such as account balance, account 

liquidating value and monthly and year-to-date profits and losses. [~1, MF Global Answer; and 

NF A records.] 

By Order dated October 31, 2011, the U.S. District Court for the Southern District of 

New York granted the Security Investor Protection Corporations' petition to place MF Global 

into liquidation. [Notification by Trustee ofM.F. Global, dated January 3, 2012.] 

3. Jay De Bradley and Glenn Trask Moore were at the relevant time associated persons 

with MF Global and employed by Fox Investments. [NFA records.] 

Elliott and her investment advisor, Jim Monti, met with an MF Global agent at an 

investment seminar in New Orleans in late 2004 or early 2005, and again in Chicago in early 

2005, before deciding to open two managed accounts. Elliott asserts that the agent was Bradley, 

who does not remember ever meeting with Elliott, but does remember meeting with Monti in 

Chicago. In its answer, MF Global stated that, in January 2005, Bradley had met with Monti in 

Chicago, and had provided disclosure documents for several commodity trading advisor and 

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registered investment advisor trading programs. Bradley also signed a form letter, dated April 

10, 2007, and addressed to all MF Global customers with accounts managed by Farr, including 

Elliott, which acknowledged then-recent massive losses in accounts managed by Farr. [Exhibit 

1, Bradley and Moore's Motion for Summary Disposition; Exhibit M, Bradley Answer; ~1 and 

Exhibit M, MF Global Answer; Bradley's replies to Elliott's interrogatories 3, 5 and 9, and 

replies to Elliott's requests for admissions 1, 7, 8, 9, 11 and 12.] 

Elliott has made inconsistent and uncertain assertions concerning whether Moore was 

present at the New Orleans and Chicago meetings. [Compare Elliott's replies to Bradley and 

Moore's interrogatory 3, and~~ 6-13 Elliott's Revised Complaint and first and second 

paragraphs, pages 1 and 2, Elliott's Response to Respondents' Motion for Summary Disposition.] 

Elliott also asserts that, after she opened the two accounts, she spoke to Moore on average every 

other month. [~ 24, Elliott's Revised Complaint.] In contrast, Moore asserts that he never met· 

with or spoke to Elliott in person, but did speak to Elliott and Monti several times between 

February 2005 and December 2007: In February 2005, around the time of the account opening, 

Monti and Elliott spoke to Moore, with Monti taking the lead and doing most of the talking. In 

early 2006, Monti and Elliott called Moore, and Elliott decided to close the Clarke account and 

transfer the funds to the Farr account. In March 2007, after the large loss in the Farr account, 

Moore spoke to Elliott and Monti, and Elliot decided to maintain the Farr account. Two to three 

additional times in 2007, Moore spoke to Elliott and Monti. Also, according to Moore, in late 

January 2008, Moore called Elliott to determine whether she wished to continue trading or close 

the Farr account, and Elliott again chose to continue trading. [Moore's replies to Elliott's 

interrogatories 3, 5 and 9, and replies to requests for admissions 1, 7, 8, 9, 11 and 12.] 

4. Farr Investments LLC ("Farr"), located in Burlingame, California, was a registered 

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commodity trading advisor at the relevant time. [Page 5, Farr Financial, LLC Disclosure 

Document, dated October 15, 2004, produced by Farr in response to Elliott's Request for 

Production of Documents #7; and NFA records.] Farr traded on behalf of Elliott, from February 

2, 2005 to October 13, 2009 pursuant to a Commodity Advisory Agreement and power of 

attorney. [Exhibits B-2, and B-6 to B-10, Farrand Sievers' joint Answer; Exhibits Hand J, MF 

Global's Answer.] On January 20, 2010, by which time Elliott's account had become dormant, 

the NF A suspended Farr' s registration for failure to pay a $1.63 million arbitration award issued 

on December 10, 2009. [In re Farr Investments LLC, NFA case number 1 0-A WD-2.] 

At the relevant time, Farr offered two trading programs, the Axel Conservative Growth 

program and the Axel Aggressive Growth program. Elliott would select the Axel Aggressive 

Growth program. [See pages 9-23 ofFarr Financial, LLC Disclosure Document (dated October 

15, 2004) and first page of Commodity Advisory Agreement, produced by Farr in response to 

Elliott's Request for Production ofDocuments #7.] 

5. Malik Ilori Sievers was at the relevant time a Farr managing principal and associated 

person. Sievers never met or spoke to Elliott. In the aftetmath of the dramatic losses in February 

2007, Sievers sent a form ("To our family of clients") letter to Elliott discussing recent losses in 

Parr-managed accounts. Next, on January 8, 2010, after Elliott's account had been dormant for 

about three months, Sievers sent a form letter to Farr clients, including Elliott, informing them 

that due to trading losses Farr was "discontinuing the Aggressive Growth trading program," and 

that remaining funds would be returned. [See ~14 and Exhibits G and H, Elliott's Revised 

Complaint; Exhibits A and B, Farrand Sievers' joint Answer; Exhibits Hand J, MF Global's 

answer; pages 5-6, Farr Financial, LLC Disclosure Document, dated October 15, 2004, produced 

by Farr in response to Elliott's Request for Production of Documents #7; Sievers letter dated 

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January 8, 2010, Exhibit G, MF Global's Answer; and NFA records.] 

The account opening 

6. Elliott and her investment advisor, Jim Monti, first learned about MF Global and the 

Clarke and Farr trading programs at an investment seminar in New Orleans in late 2004 or early 

2005. On or about February 2, 2005, in MF Global's Chicago office, Elliott and Monti met with 

Bradley and decided to open two managed accounts. Elliott asserts that Bradley showed her 

performance charts for the Clarke and Farr trading programs which showed that they had been 

outperforming the S&P 500, and alleges that Bradley undetmined the written risk disclosures by 

representing that the trading programs were only "somewhat more risky" than stocks because the 

trading advisors employed sophisticated risk management techniques and representing that he 

had invested his own funds in the Clarke and Farr trading programs. [See second paragraph, 

pages 1 and 2, Elliott's Response to Respondents' Motion for Summary Disposition; and ~~5-15, 

Elliott's Revised Complaint.] 

7. Elliott decided to open an IRA account with MF Global and executed and signed 

various account-opening documents, including: MF Global Customer Account Application, 

Customer Agreement, and Fee Payment Authorization; Fox Investments additional disclosure 

document; Discretionary Trading Authorizations and Powers of Attorney for Clarke and Farr; 

Commodity Advisory Agreements for Farrand Clarke; and CFTC rule 1.55 Risk Disclosure 

document and signature page. On February 24 and 25, 2005, Elliott funded two managed futures 

accounts to be traded by Clarke and Farr. [Exhibits A, B, C, D, E, F, H, I, J, K and L, Bradley's 

Amended Answer; and Parr's response to Elliott's Request for Production of Documents #7. 

See~~ 13-16 of Elliott's Revised Complaint, and pages 2-7, MF Global's Answer.] 

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Trading activity 

8. For the Clarke account, Elliott deposited $123,000 in February 2005. The Clarke 

account enjoyed modest profits in June and July 2005, but afterwards realized limited losses. 

Elliott closed the Clarke account in February 2006, and withdrew $90,528, for a net loss of 

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$32,472. [See complete set of account statements produced by MF Global.] 

9. Elliott also opened the Farr account in February 2005, and deposited a total of 

$118,528. The Farr account would be actively traded until January 22, 2008. The performance 

of the Farr account was relatively static until February 2006, after which the account 

accumulated steady gains until January 2007. In January 2007, the account balance peaked at 

$154,402. Subsequently, the account balance gradually and steadily declined, with sharp drops 

in late February and early March 2007 ($115,402 to $65,823), and January 22, 2008 ($34,437 to 

$15,963). Thus, by late January 2008, Elliott had lost $102,700, which represented 87% of the 

$118,528 she had deposited in the Farr account, and 99% of what would be the total out-ofpocket losses in the Fan- account: $103,897. [See table of month-end to month-end marked-tomarket account values, at pages 11-13 of Bradley's Answer.] 

For the next twenty months, February 2008 to October 2009, the Farr account was lightly 

traded, with an average of between one and two option spread trades per month and an account 

balance fluctuating in a narrow range between $17,844 and $14,631. On October 21, 2009, the 

last spreads were closed out, leaving an ending account balance of $14,631. Four months later, 

on February 26, 2010, the account balance was returned to Elliott. Thus, during this last lengthy 

period of light trading, Elliott realized an additional out-of-pocket loss in the Fan- account of 

$1,197 (based on the drop in account balance from $15,963 to $14,631), which represented 1% 

of her total out-of-pocket losses in the Farr account. [See complete set of account statements 

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produced by MF Global.] The conclusion that Elliott had a good idea how her accounts were 

performing is underscored by: one, the fact that she called Moore in early 2006 to discuss what 

she described as the "disappointing performance" of the Clarke account; two, the fact that she 

called Moore in early 2007 "to express her alarm" at recent dramatic losses in the Farr account; 

and three, the fact that she indicated in her February 2008 complaint to the SEC that she was 

aware of the declining account balances in the Clarke and Farr accounts. [See~~ 21-23, Elliott's 

Revised Complaint; and§ B1, pages 8-9, and Exhibit 2, Moore and Bradley's Motion for 

Summary Disposition.] 

MF Global's, Bradley's, Sievers' and Elliott's Written Communications 

10. As noted above, for both accounts, MF Global timely provided Elliott with daily 

confirmation statements and month-end account summary statements, which accurately reported 

trading activity and account status, such as account balance, account liquidating value and 

monthly and year-to-date profits and losses. According to Elliott, she had difficulty 

understanding the statements and regularly called Moore and Bradley who adequately explained 

the basic information in the statements. Despite these rudimentary explanations, Elliott states 

that she never fully grasped more technical matters like the Farr program's strategies. In any 

event, notwithstanding her inability to grasp technical matters, Elliott was fully aware of basic, 

material facts like her account balance and her losses when they were reported. [See second full 

paragraph on 2nd page of Elliott's Response to Respondents' Motion for Summary Disposition.] 

11. In the aftermath of the dramatic losses in the Farr account in early 2007, Bradley and 

Sievers issued letters to customers with accounts managed by FatT. 

On April 10, 2007, Bradley sent Elliott a letter on behalf of MFG for customers who 

were participants in the Fan program: 

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We are writing to you regarding your individually managed futures 

account(s) with Farr Capital Management ("Farr"). We want to make sure 

you are aware that the accounts managed by Farr have recently exceeded 

Farr's worst historical drawdowns due partially to large volatility increases 

in the S&P 500. Farr's trading strategy is sensitive to volatility. While 

stock market volatility could decline in the coming days and weeks, there 

is also the risk that volatility will continue to increase and that further 

losses in these accounts will result. 

We recommend you review your individually managed futures 

account(s) traded by Farr. If you need any assistance, or if you have any 

questions regarding any of the foregoing, please contact me at your 

earliest convenience. . . . 

As can be seen, the letter clearly mentioned the fact of the losses, explained the cause (the 

negative impact of increased volatility), and wamed Elliott that additional losses might occur and 

that Elliott should therefore review her accounts. [Exhibit M, Bradley's Revised Answer, and 

Exhibit 1, Memorandum of Law in Support of Respondents' Motion for summary Disposition.] 

Also, sometime in April 2007, Sievers sent to Farr customers, including Elliott, a "To our 

family of clients" damage-control letter. [Exhibit G, Elliott's Revised Answer. See~ 25, 

Elliott's Revised Complaint, and page 3, Farrand Sievers' joint Answer.] 

12. Soon after the dramatic losses in January and February 2008, Elliott drafted a 

complaint letter to the Securities and Exchange Commission: 

"In 2005, I invested $150,000.00 from my pension at True Value Hardware with 

Man Financial through Fox Investments as an IRA. At that time, $123,000.00 went into 

a fund called Clarke which was supposedly earning around 20% a month. The rest went 

into Farr which was the more conservative, earning 2% a month. The Clarke investment 

never paid anywhere near 20% a month and consistently(sic) lost money. I eventually 

moved everything from Clarke to Farr. According to the statement dated February 19, 

2008, the total equity is $15,928.40. I feel this account has been totally mishandled and 

that I have been give poor advice all along. As [r]ecently as early January when the 

quarterly statement ending 12/31/2007 reported the account value as $34,475.97, I called 

Glenn Moore at Fox Investments and asked what was going on. He told me that all of 

this was due to the volatility(sic) of the market and that there had never been such 

volatility(sic) before. I asked him if experienced traders should not have been able to 

forsee some of this and react accordingly. I was told they have now been directed to use 

a more conservative model. I was told by Glenn that they owed me a recovery and I 

could expect one in 3-4 years. (It was later pointed out to me that would mean a return of 

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44% a year.) He told me to sit tight; they expected things to begin to turn around in the 

first quarter of2008. Like I said, my account now stands at $15,000.00. The accountant 

who is doing my taxes suggested I contact the SEC. My sister, who is also a tax 

accountant suggested I get in touch with the Attorney General of my state. She feels this 

is more than mismanagement; that it is fraud. I hope you can help me. Please feel free to 

contact [me.]" 

Exhibit 2, Moore and Bradley's Motion for Summary Disposition. See§ B2, pages 9-10, Moore 

and Bradley's Memorandum of Law in support of Motion for Summary Disposition; page 5, 

Elliott's Response to Respondents' Motion for Summary Disposition; and pages 2-3, Moore and 

Bradley's Response to Elliott's Response to Respondents' Motion for Summary Disposition.] 

Discussion and Conclusions 

Under Commission rule 12.207, summary disposition is appropriate only when three 

conditions have been met: one, no genuine issue exists as to any material fact; two, no need 

exists for further factual development; and three, the moving party is entitled to a decision as a 

matter of law. See Levi-Zeligman v. Merrill Lynch Futures, Inc., Comm. Fut. L. Rep. ~ 26,236, 

at 42,031 (CFTC 1994). The Commission's summary disposition rule is patterned on the 

summary judgment provisions of Federal Rules of Civil Procedure 56, and the Commission is 

guided by federal case law in applying its rule. 3 The Commission has stated that the purpose of 

summary disposition is to avoid '"the empty ritual of an oral hearing,' when it is clear that the 

nonmoving party's claims or defenses will fail." In re LeClaire, Comm. Fur. L. Rep. P26,282 at 

42,429 (CFTC Dec. 12, 1994). At the summary disposition stage, the judge's function is not to 

3 See, e.g., Anderson v. Liberty Lobby, Inc., 4 77 U.S. 242, 249-50 (1986) ("There is no issue for trial unless there is 

sufficient evidence favoring the nonmoving party for a trier of fact to return a verdict for that pmty. If the evidence 

is merely colorable, or is not significantly probative, summary judgment may be granted."); Matsushita Electronic 

Industries v. Zenith Radio Cmp., 475 U.S. 574, 586 (1986) (In contesting a claim that there is no genuine issue of 

material fact, the nonmoving party "must do more than simply show that there is some metaphysical doubt as to the 

material facts."); and Secret my of Labor v. Lauritzen, 835 F.2d 1529, 1534 (7th Cir. 1987) ("The court should 

neither 'look the other way' to ignore genuine issues of material fact, nor 'strain to find' material f<:~ct issues where 

there are none .... "). 

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weigh the evidence and determine the truth of the matter but to determine whether there is a 

genuine issue for trial. All reasonable doubts about the facts should be resolved in favor of the 

non-moving party. If reasonable minds could differ on any inferences arising from undisputed 

facts, summary judgment should be denied. When more than one inference reasonably can be 

drawn, it is not for the trier of fact to determine the proper one. Aboulghar v. Mulcahey, Comm. 

Fut. L. Rep. ~31,932, at 66,121 (CFTC Sept. 2, 2010). 

In appropriate circumstances, statute of limitations issues may be resolved on a summary 

basis, as long as there is no significant doubt as to whether the evidentiary record is sufficiently 

developed for reliable resolution of limitations-related issues. Chaney v. Greco, Comm. Fut. L. 

Rep.,~ 30,761, at 61,594 (CFTC 2008). In this instance, the pmiies have produced statements 

describing the factual matters underlying the limitations-related issues, i.e., when Elliott 

discovered her losses and respondents' alleged violations, and the pmiies' subsequent conduct. 

After carefully reviewing the parties' submissions, I have determined that additional discovery 

and written testimony, and any oral testimony, is unlikely to flesh out, or clarify, the factual 

circumstances that are material to the statute of limitations defense. 

A cause of action accrues, and the two-year limitations period under Section 14(a)(1) of 

the Act begins to run, when a complainant discovers the wrongful conduct underlying his claim, 

or in the exercise of reasonable diligence, should have discovered the wrongful activity.4 

McGough v. Bradford, Comm. Fut. L. Rep.~ 28,265, at 50,601-50,603 (CFTC 2000). A 

determination of when wrongful activity should have been discovered is based on the particular 

facts and circumstances of the case, including: one, the relationship of the parties; two, the 

4 Section 14(a)(l) ofthe Act provides: "Any person complaining of any violation of any provision of this Act or any 

rule, regulation, or order issued pursuant to this Act by any person who is registered under this Act may, at any time 

within two years after the cause of action accrues, apply to the Commission for an order awarding-

( A) actual damages proximately caused by such violation ... " 

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nature ofthe wrongful activity; three, the complainant's opportunity to discover the wrongful 

activity; and four, the actions taken by the parties subsequent to the wrongful activity. Id. The 

customer need not discover all of the elements of the fraud, but only those facts enabling her to 

detect a general fraudulent scheme and prompt an investigation or consultation with a 

knowledgeable attorney. Thus, the statute of limitations does "not await a customer's leisurely 

discovery of the full details of the alleged scheme. Martin v. Shear son Lehman, Comm. Fut. L. 

Rep. ~23,354, at 32,982 (CFTC 1986). See McGough, supra. 

Here, after meeting Bradley at an investment seminar in New Orleans in late 2004 or 

early 2005, and again in MF Global's Chicago office in early 2005, Elliott relied on respondents' 

purported misrepresentations about limiting risk and decided to open the two managed accounts 

carried by MF Global. Elliott opened the Clarke account in February 2005 and closed it in 

February 2006. Elliott deposited a total of $123,000, and withdrew a total of $90,538 in early 

2006, resulting in out-of-pocket losses in the Clarke account totaling $32,4 72. 

Elliott also opened the Farr account in February 2005, and deposited a total of$118,528. 

The Farr account was actively traded until January 22, 2008. In January 2007, the account 

balance peaked at $154,402. Subsequently, the account balance gradually and steadily declined, 

with sharp drops in March 2007 ($115,402 to $65,823) and January 22,2008 ($34,437 to 

$15,963). Thus, by late January 2008, Elliott had lost $102,700 in the Farr account, which 

represented 87% of the $118,528 she had deposited in the Farr account, and 99% of what would 

be her total out-of-pocket losses in the Farr account: $103,897. 

For the next twenty months, February 2008 to October 2009, the Farr account was lightly 

traded, with an average of between one and two option spread trades per month and an account 

balance fluctuating in a narrow range between $17,844 and $14,631. On October 21,2009, the 

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last spreads were closed out, leaving an ending account balance of $14,631. Four months later, 

on February 26, 2010, the account balance was returned to Elliott. Thus, during this last lengthy 

period of light trading, Elliott realized an additional out-of-pocket loss in the FaiT account of 

$1,197 (based on drop in account balance from $15,963 to $14,631), which represented 1% of 

her total out-of-pocket losses in the Farr account. 

Elliott filed her reparations complaint on October 29, 2010, fifty-six months after she had 

closed the Clarke account, and thirty-two months after she had lost 87% of her investment in the 

Farr account and realized 99% of her total out-of-pocket losses in the FaiT account. 

Elliott, a well-educated individual, sufficiently comprehended the trading results and 

account status reported by the account statements. Thus, based on receipt of the trade 

confirmation statements and monthly account statements, Elliott knew before the end of February 

2008: that for the Clarke account, Elliott had lost $32,472 in one year, which represented a 

quarter of her $123,000 deposits in the Clarke account; and that for the Farr account, Elliott had 

lost $102,700 in three years, which represented 87% of her $118,528 deposits in the Farr 

account, and 99% of what would be her total out-of-pocket losses in the Farr account: $103,897. 

Since these financial losses went directly to the heart of Elliott's claim that respondents 

had falsely exaggerated their ability to limit her risk, Elliott's cause of action against respondents 

for any violations in connection with the trading and handling of the Clarke accrued no later than 

late February 2006 when she closed the Clarke account, and Elliott's cause of action against 

respondents for any violations in connection with the trading and handling of the FaiT account 

accrued no later than late February 2008, when she learned that he had lost 87% of her 

investment in that account. The conclusion that Elliott was fully aware of the scale of her losses 

by late February 2008 is supp01ied by: the fact that she called Moore in early 2006, to discuss 

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what she described as the "disappointing performance" of the Clarke account; the fact that she 

called Moore in early 2007 "to express her alarm" at recent dramatic losses in the Farr account; 

and the fact that she indicated in her February 2008 complaint to the SEC that she was aware of 

the declining account balances in the Clarke and Farr accounts. The fact that Elliott had reason 

to suspect wrongdoing by respondents is supported by the fact that she represented in her SEC 

complaint letter that her accountant had told her that she had been a victim of fraud. 

The date that Elliott filed her complaint, October 29, 2010, is clearly well past the twoyear deadline. Elliott's claim that respondents' purported lulling conduct dissuaded her from 

filing a complaint sooner is without merit. First, all or most of Moore's purported lulling 

conduct appears to have taken place before February 2008, when Elliott drafted her complaint 

letter to the SEC in which she described and questioned Moore's purported lulling conduct. 

Second, Moore's advice cannot fairly be characterized as lulling conduct where Elliott has 

produced no evidence: that she had ever promptly complained to respondents that they had 

misrepresented Farr's ability to limit risk, that respondents had ever made any false promises to 

resolve any dispute, or that respondents had otherwise said anything designed to dissuade or 

delay her from initiating legal action. See Distel man v. Shatkin, Arbor, Karlov & Co., Comm. 

Fut. L. Rep. ~27,116 at 45,256 (CFTC 1997) (Statue of limitations tolled where respondent 

actively dissuaded complainant from filing an imminent reparations complaint with a series of 

bad faith promises to settle the dispute). Moreover, the mediocre performance of the Farr account 

over its final twenty months, from February 2008 to October 2009, should have disabused Elliott 

of any notions that Farr could realistically recoup her losses. In these circumstances, the delay 

from February 2008 to October 2010 was principally caused by Elliott's decision to wait 

until April 201 0 to consult an attomey and then not file a complaint for 

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another six months, and she alone must bear responsibility for her dilatory actions. Therefore, 

the record supports the conclusion thatthere is no genuine issue as to any fact material to the 

statute of limitations defense, and that respondents are entitled to dismissal as a matter oflaw. 

ORDER 

Respondents have established that Elliott did not timely file her complaint and that there 

is no basis for application of principals of equitable tolling or estoppel. Thus, it is concluded that 

the complaint is barred by the statute of limitations, and the complaint is hereby dismissed. 

Dated December 5, 2012. 

v:;J_ rv M :J c-:. 

Ph~Guire, Judgment Officer 

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