UNITED STATES OF AMERICA 


Before the 


COMMODITY FUTURES TRADING COMMISSION 


THE CONWAY FAMILY TRUST, 

MICHAEL H. CONWAY, III, Co-Trustee, and 

PHYLLIS W. CONWAY, Co-Trustee, 

Complainants, 

v. 

DORMAN TRADING, LLC, 

Respondent. 

CFTC Docket No. 12-R002 

OPINION AND ORDER 

Michael H. Conway, III, and Phyllis W. Conway, co-trustees of The Conway Family 

Trust ("Conways" or "Conway Trust"), appeal from the Judgment Officer's May 9, 2014 Order 

on Summary Disposition (Record No. [R.] 65a) ("Order") dismissing their reparations claim as 

time-barred under the applicable statute of limitations. We affirm the Order. 1 

A person who seeks money damages through the Commission's reparations program 

must ordinarily file a reparations claim within two years of when the claim accrues. 7 U.S.C. 

§ 18(a)(l)(A). The Conways filed their claim in October 2011 for losses they allegedly suffered 

three years earlier, in October 2008. They assert that their claim is nevertheless timely because 

the two-year limitations period should be tolled during a thirteen-month period in which they 

pursued the same claim in arbitration before the National Futures Association ("NF A"). We find 

1 We also deny the Conways' request for oral argument, finding the facts and law to be clear 

from the record. 17 C.F.R. § 12.40l(e) (giving Commission discretion to grant or deny oral 

argument). 
that tolling does not apply under the circumstances and the Conways' claim is therefore 

untimely. 

BACKGROUND 

!VF'AProceedings 

The Conway Trust is a sophisticated investor and Eligible Contract Participant that, at the 

time ofthe relevant events, had a net worth of more than $50 million. R.22, Tab 4 (pdf p.43); 

R.65a, Order at 3, ~ 1; see 17 C.F.R. § 166.S(g). 

On October 6, 20 l0, the Conways submitted to the NFA a notice of intent to arbitrate a 

claim against futures commission merchant Dorman Trading, LLC, and others. R.19, Ex. 4. 

When the Conways filed their arbitration claim with the NFA, they agreed to the NFA's Code of 

Arbitration. As relevant here, in the agreement they acknowledged that bringing an NFA 

arbitration claim might relinquish their right to pursue a CFTC reparations claim. R.49b, Ex. 9. 

The Conways alleged that John Logan, a commodity trading advisor with Trade Angle 

Advisors whom they had selected to trade their Dorman account, deviated from his pledged 

trading strategy while trading in the account and made unauthorized trades through Dorman. 

They also asserted that Dorman issued erroneous account value statements. R.49b, Ex. 8 at 2-3 

(Nov. 9, 2010 Claim). The Conways further alleged that Logan was not licensed to trade and 

had a prior criminal history, and that Dorman should have taken steps to learn that the accounts 

were "solicited under false pretenses and being traded unlawfully" by Logan. Id. at 3. 

According to the Conways, Logan's actions resulted in "catastrophic losses," for which they 

sought $3,687, 134.69 in damages based on trading losses occurring between October 13 and 22, 

2008. Id. at 2. 

2 

Dorman filed a motion to dismiss the Conways' claim as untimely. The NFA arbitration 

panel issued an order on September 1, 2011, stating that it was provisionally granting Dorman's 

motion on the grounds that a one-year limitations period set forth in the Dorman Customer 

Agreement applied to the Conways' NFA arbitration and had expired some two years earlier. 

R.19, Ex. 5, The Comvay Family Trust v. Dorman Trading, LLC, et al., NFA Case No. 10-ARB120 (Order ofSept. 1, 2011 ). The NFA panel informed the Conways that dismissal would be 

granted "unless The Conway Family Trust files a Motion to Amend along with a re-pied Claim 

no later than thirty days from the date of service of this Order." Id. 

The Conways did not seek to amend or re-plead their arbitration claim. Instead, on 

September 30, 2011, almost three years after the events ofOctober 2008 giving rise to the claim, 

they informed NFA that they would "pursue their claims against Dorman by filing a CFTC 

Reparations Complaint." R.49b, Ex. I 0 at l. 

On October 18, 2011, the NFA arbitration panel dismissed the Con ways' claim with 

prejudice. R.49b, Ex. 11, The Conway Family Trust v. Dorman Trading, LLC, et al., NFA Case 

No. 10-ARB-120 (Order of Oct. 18, 2011).2 

The CFTC Reparations Claim 

Almost three years after their trading losses in October 2008, the Conways filed a 

reparations claim with the Commission. R. l (Oct. 4, 2011 ); R.19 (June 8, 2012 Amendment). 

On May 9, 2014, the Judgment Officer issued an Order on Summary Disposition, dismissing the 

case on the basis of the two-year statute of limitations in Commodity Exchange Act (CEA) 

2 NFA thereafter granted the Conways a partial default judgment of$572,600 against other NFA 

respondents who are not parties to these reparation proceedings. (R.49b, Ex. 12, The Comvay 

Family Trust v. Dorman Trading, LLC, et al., NFA Case No. 10-ARB-120 (NFA Final Award of 

Dec. 5, 2012 against Trade Angle Advisors, LLC, Keith Doolittle, and John Dolan). 

3 

section 14(a)(l)(A), 7 U.S.C. § 18(a)(l)(A). The Conways timely appealed to the Commission. 

R.66. 

STANDARD OF REVIEW 

Commission Rule 12.310 provides that summary disposition shall be granted ifthere 

exists no genuine issue as to any material fact; there is no necessity for further facts to be 

developed; and the moving party is entitled to a decision as a matter of law. 17 C.F.R. § 

12.3 lO(e). Because the material facts here are not in dispute, it was appropriate for the Judgment 

Officer to decide this case on summary disposition. We review the decision de novo. Ahoulghar 

v. Mulcahy, [2011-2012 Transfer Binder] Comm. Fut. L. Rep. (CCH) ~ 31,932, at 66, 121, 

No. 06-R044, 20 I 0 WL 4278911, at *2-3 (CFTC Sept. 2, 20 I 0). 

DISCUSSION 

The Conways' Claim Is Untimely and Tolling Does Not Apply 

The Conways' reparations claim is time-barred, falling well outside the CEA's two-year 

statute of limitations. 7 U.S.C. § I 8(a)( I )(A) (two-year statute of limitations in reparations 

complaints). We agree with the Judgment Officer that the statute of limitations should not be 

tolled in this situation. 

Under Commission precedent, equitable tolling of a statute of limitations is generally 

permitted only where a person is prevented from timely filing by extraordinary circumstances 

outside his or her control and through no fault of his or her own. In re Buckwalter, [1992-1994 

Transfer Binder] Comm. Fut. L. Rep. (CCH) ~ 25,609, at 39,893-94, No. 80-28, 1992 WL 

372188, at *3-4 (CFTC Dec. I0, 1992); see also Menominee Indian Tribe ofWis. v. United 

States, 764 F.3d 51, 58 (D.C. Cir. 2014); Arrieta v. Battaglia, 461 F.3d 861, 867 (7th Cir. 2006). 

"The circumstance that stood in a litigant's way cannot be a product of that litigant's own 

4 

misunderstanding of the law or tactical mistakes in litigation." Menominee Indian Tribe ofWis., 

764 F.3d at 58; accord Arrieta, 461 F.3d at 867. The facts here do not support equitable tolling. 

The Conways do not contest that they were notified at the outset of arbitration 

proceedings that pursuing a remedy through the NF A might interfere with future participation in 

the CFTC reparations program. The Conways also agreed to abide by any award rendered in the 

NFA arbitration proceeding. R.71 at 17-18, citing R.49b, Ex. 9. Only after NFA issued the 

initial adverse order did the Conways file their reparations claim. The arbitration panel gave the 

Conways the opportunity to re-file, and the Conways chose not to do so, or to advance any 

reason why the one-year contractual limitations period should not be enforced by the NFA. 3 We 

find that these circumstances are not analogous to the typical case in which tolling is granted. At 

best, this is a case of mistake or ignorance of law or excusable neglect, which do not justify 

tolling. Buckwalter, supra at 39,893, 1992 WL 372188, at *3 (garden-variety claims of 

excusable neglect are insufficient to justify equitable tolling); Arrieta, 461 F.3d at 867. 4 

3 See R.65a, Order at 13 (observing that the Conways "never sought clarification or 

reconsideration ofthe NFA award"). Because the Conways did not raise this issue with the 

NFA, we do not reach it. 

4 In a.case not cited by the Conways, Sommer v. ContiCommodity Servs., Inc., [1987-1990 

Transfer Binder] Comm. Fut. L. Rep. (CCH) ~ 24,244, at 35,106, No. 87-Rl26, 1988 WL 

228628, at * 5 (CFTC May 20, 1988), we tolled the statute of limitations for a short period in 

which the claimants pursued arbitration. Sommer is distinguishable, mainly because terminating 

the arbitration there served the purpose of reparations to provide "a more flexible and informal 

forum than that available in court[.]" Id. In Sommer, early in the arbitration proceedings, the 

claimants withdrew because the respondent filed a motion to dismiss on the basis that the dispute 

was not arbitrable, the resolution ofwhich motion would be time consuming. Id. The Con ways, 

by contrast, waited until the case was decided against them. This also raises the concern of 

unfair prejudice to Dorman. See 17 C.F.R. § 12.4(b) (permitting the Commission to waive a 

procedural rule providing that "no party will be prejudiced thereby"). 

5 

CONCLUSION 


For the reasons stated above, we affirm the Judgment Officer's Order dismissing the 

complaint as untimely. 

IT IS SO ORDERED. s 

By the Commission (Chairman MASSAD and Commissioners BOWEN and GIANCARLO). 

Dated: July 8, 2016 

s A party may petition for review of a CFTC reparation order to the United States Court of 

Appeals for the circuit in which a hearing was held, if any; if no hearing was held, the petition 

may be filed in any circuit in which the appellee is located. 7 U.S.C. §§ 9(1 l)(B), l8(e). Such a 

petition for review must be filed within 15 days after notice ofthe order; any such petition is not 

effective unless, within 30 days ofthe date ofthe Commission order, the petitioning party files 

with the court a bond equal to double the amount ofany reparation award. Id. § 18(e). 

6