Commodity Futures Trading Commission v. Worth Bullion Group, Inc.

In the
United States Court of Appeals
For the Seventh Circuit
No. 12-3372
C OMMODITY F UTURES T RADING C OMMISSION,
Plaintiff-Appellee,
v.
W ORTH B ULLION G ROUP, INC.,
M INTCO LLC, AND D IAMOND S TATE D EPOSITORY LLC,
Defendants-Appellants.
Appeal from the United States District Court
for the Northern District of Illinois, Eastern Division.
No. 12 C 2431—John A. Nordberg, Judge.
A RGUED JANUARY 22, 2013—D ECIDED M AY 29, 2013
Before R IPPLE and R OVNER, Circuit Judges, and B ARKER,
District Judge.Œ
B ARKER, District Judge. This appeal arises from an
action filed by the United States Commodity Futures
Œ
The Honorable Sarah Evans Barker, United States District
Court for the Southern District of Indiana, sitting by designation.
2 No. 12-3372
Trading Commission (“CFTC”) to enforce several admin-
istrative subpoenas served on Worth Bullion Group,
Inc. (“Worth”), Mintco LLC (“Mintco”), and Diamond
State Depository LLC (“DSD”) in connection with the
CFTC’s investigation into whether appellants are in
violation of various sections of the Commodity Ex-
change Act. 7 U.S.C. §§ 1 et seq. Worth, Mintco and DSD
all conduct business in the precious metals market.
Worth is a precious metal wholesaler; Mintco is
a precious metals dealer and retailer; and DSD is a dep-
ository for storing precious metals. The subpoenas
seek documents relating to purchases or sales of
precious metals in which appellants were involved.
Appellants handed over the documents requested by
the CFTC, but redacted the names and contact informa-
tion of the individual customers, retailers, and intermedi-
aries, asserting that they (the appellants) are covered by
the Right to Financial Privacy Act (“RFPA”), which re-
quires that customers of a “financial institution” be
given notice and the opportunity to object before any
disclosures are made.1 See 12 U.S.C. §§ 3401, 3402(2), 3405.
The district court rejected this argument, finding that
the RFPA does not apply to appellants, and ordered
1
Before the district court, appellants alternatively argued
that the materials that they produced established that the
CFTC does not have jurisdiction over the transactions at
issue because the documents show that delivery of precious
metals in each instance occurred within 28 days of the sale,
which places them outside the scope of 7 U.S.C. § 2(c)(2)(D).
That issue has not been renewed on appeal, however.
No. 12-3372 3
Worth, Mintco, and DSD to comply in full with the sub-
poenas. The district court’s order is currently stayed
pending appeal. On appeal, we consider whether appel-
lants are covered “financial institutions” under the
RFPA. For the reasons explained below, we hold that
they are not and thus affirm the district court’s holding.
I. BACKGROUND
Worth’s business is the purchase of precious metals
on world markets which it sells to retailers, such as
Mintco, who sell the metal(s) to retail customers, who are
generally individuals. Worth uses a form agreement
with each of its retailers and requires its retailers to use
similar agreements with each of their customers in con-
nection with sales made by them. In a typical transaction,
after a retailer makes a sale, it submits the order to
Worth so that the metal can be transferred from Worth
to the customer.
When Worth purchases precious metals, it arranges
for the metals to be delivered to DSD, an independent,
secure depository. Upon receipt, DSD initially holds the
metals in a master account that it maintains for Worth.
Worth claims that when one of its retailers makes a sale,
delivery to that customer is effected by Worth’s instruc-
tions to DSD to transfer the amount of metal(s) pur-
chased by the customer from the master account into a
subaccount that DSD creates for that customer. DSD then
prepares and transmits to the customer a non-negotiable
warehouse receipt, which reflects the creation of the
customer’s subaccount. Under the terms of the agree-
4 No. 12-3372
ments Worth maintains with its retailers as well as the
terms of the retailers’ agreements with their customers,
delivery occurs at the point when the metals are trans-
ferred to DSD with Worth’s instructions to allocate the
metals to the customer’s account. According to Worth, it
always makes delivery to its customers within 28 days.
Most of these precious metals sales are financed, mean-
ing that the customer pays only a portion of the price
and borrows the remainder. A significant portion of
Worth’s business includes financing customers’ pur-
chases of precious metals. When it makes a loan to a
customer, Worth charges interest on the unpaid balance
and takes a security interest in the metals as collateral.
Worth also provides monthly account statements to its
customers, which include the financing fees payable
to Worth. Mintco reportedly arranges financing through
Worth’s financing program both for customers who
purchase Worth’s precious metals as well as for cus-
tomers who purchase other metals. Financing generates
approximately 80% of Worth’s and 90% of Mintco’s
business and revenues.
The CFTC is an independent regulatory agency
charged by law with the administration and enforcement
of the Commodity Exchange Act, as amended, 7 U.S.C.
§§ 1 et seq. (“CEA”). The CEA authorizes the CFTC to
bring an enforcement action in federal court against any
person who is violating or is about to violate any of
the CEA’s antifraud provisions. 7 U.S.C. § 13a-1. On
November 15, 2011, the CFTC issued a formal order of
investigation to determine whether any person, firm, or
No. 12-3372 5
entity has violated the CEA in connection with retail
commodity transactions, including those in which ap-
pellants are engaged. In particular, the CFTC investiga-
tion is focused on: “whether any person has violated
7 U.S.C. § 6(a), which prohibits, inter alia, the sale of any
commodity futures contract unless that sale is conducted
on a contract market registered by the [CFTC]; 7 U.S.C.
§ 6b, which prohibits, inter alia, the use of deception in
connection with the sale of any commodity futures con-
tract; and 7 U.S.C. § 15, which prohibits any person
from using deception in connection with the sale of any
commodity in interstate commerce.” 2
Pursuant to its investigation, the CFTC issued sub-
poenas to Worth, Mintco, and DSD, seeking docu-
ments relating to the time period from July 16, 2011 to
the present. The subpoena directed to Worth, issued on
November 16, 2011, sought documents and information
relating, inter alia, to the opening of accounts for
customers; deliveries of metal from Worth to any cus-
tomer; payments between Worth and any customer;
sales or purchases of metals made by Worth for or on
behalf of any customer; and Worth’s precious metal
financing. On December 7, 2011, the CFTC issued a sub-
poena to Mintco, seeking similar documents and infor-
mation, including, inter alia, transaction history reports
for all of Mintco’s customers; documents related to
the actual delivery of metal to Mintco’s customers; docu-
ments related to the storage of metal by anyone on
2
Appellee’s Resp. at 7.
6 No. 12-3372
behalf of Mintco’s customers; and documents related to
loans, credit, or financing provided by Mintco to any
customer. The CFTC issued two subpoenas to DSD,
one on December 21, 2011, and the other on January 6,
2012. These subpoenas sought information concerning
Worth, its retailers, and its customers, including, inter alia,
documents regarding Worth’s inventory of precious
metals; documents related to the storage and physical
delivery of precious metals for Worth, any affiliated
dealers, and Worth’s customers; and documents re-
lating to sales or purchases of precious metals by Worth,
its affiliated dealers, and its customers.
Worth, Mintco, and DSD each reportedly produced
thousands of pages of responsive documents to the sub-
poenas, but failed to fully comply with the subpoenas
by redacting the names and identifying information of
their customers, independent retailers, and delivery
intermediaries from the documents.3 The identities
of Worth’s own suppliers and depositories were not
redacted, however, nor were any dates, transaction
data financial data, account numbers for customers, or
retailers’ identification numbers. Worth and Mintco
based their decision to redact the identifying informa-
tion on the relinquished materials on the grounds that,
because financing consumers’ purchases of metals was
3
Appellants concede that the names and identifying informa-
tion of the retailers and intermediary delivery companies
must be produced and have not appealed that portion of the
district court’s ruling.
No. 12-3372 7
an essential part of their businesses, they were “finan-
cial institutions” under the RFPA and, as such, the
CFTC was required to notify their customers before
appellants were permitted to make any disclosures of
personal information, and so informed the CFTC. DSD,
although not claiming to be a covered financial institu-
tion, redacted information on its subpoenaed docu-
ments based on its contention that, as an agent of Worth,
it is subject to the same restrictions under the RFPA.
The district court held that the RFPA does not apply
to appellants because they do not fall within the
statute’s definition of “financial institution.” Applying
the doctrine of noscitur a sociis,4 the district court deter-
mined that appellants’ business was not sufficiently
similar to the other entities listed in the RFPA’s defini-
tion of “financial institution,” and thus, ordered ap-
pellants to comply in full with the subpoenas. The
district court subsequently stayed its ruling pending
appeal, based on appellants’ claim that compliance with
the subpoenas would cause them irreparable harm.
4
Under the doctrine of noscitur a sociis, “the meaning of
questionable words or phrases in a statute may be ascertained
by reference to the meaning of words or phrases associated
with it.” United States v. Schuster, 467 F.3d 614, 619-20 (7th
Cir. 2006) (internal quotations and citation omitted).
8 No. 12-3372
II. DISCUSSION
The RFPA expressly prohibits “financial institutions”
from providing a government agency with access to
any customer’s financial records unless the customer is
first given notice and the opportunity to object. 12 U.S.C.
§§ 3402, 3405. The RFPA defines “financial institution” as
“any office of a bank, savings bank, card issuer . . ., indus-
trial loan company, trust company, savings association,
building and loan, or homestead association (including
cooperative banks), credit union, or consumer finance
institution.” 12 U.S.C. § 3401. Appellants contend
that Worth and Mintco qualify as “consumer finance in-
stitutions” under this definition. The question of who
qualifies as a “consumer finance institution” under the
RFPA is a matter of first impression in this circuit.5 As
5
Following oral argument, our research disclosed that this
issue has been recently addressed in the Southern District of
Florida in Federal Trade Comm’n v. Sterling Precious Metals, LLC,
No. 12-80597-CIV, 2013 WL 1442180 (S.D. Fla. Apr. 9, 2013), a
case involving another of Worth’s precious metal retailers
and three of its members. There, defendants argued that they
were consumer finance institutions under the RFPA by virtue
of their facilitation of their customers’ financing through
Worth for the purchase of precious metals. In the alternative,
defendants argued that, even if they themselves did not meet
the definition, Worth qualifies as a consumer finance institu-
tion; they are Worth’s agents and, as such, they are also
covered under the RFPA. The district court held that the
defendants were not consumer finance institutions under the
(continued...)
No. 12-3372 9
an issue of statutory construction, it is a legal question
that we consider de novo. Masters v. Hesston Corp., 291
F.3d 985, 989 (7th Cir. 2002) (citation omitted).
Our starting point in cases involving statutory con-
struction is “the language employed by Congress and
the assumption that the ordinary meaning of that
language accurately expresses the legislative purpose.”
Turley v. Gaetz, 625 F.3d 1005, 1008 (7th Cir. 2010) (quoting
Park ‘N Fly, Inc. v. Dollar Park & Fly, Inc., 469 U.S. 189, 194
(1985)). In the absence of statutory definitions, “ ‘we
accord words and phrases their ordinary and natural
meaning and avoid rendering them meaningless, redun-
dant, or superfluous; we view words not in isolation
but in the context of the terms that surround
them . . . .’ ” Scherr v. Marriott Int’l, Inc., 703 F.3d 1069,
1077 (7th Cir. 2013) (quoting In re Merchants Grain, Inc., 93
F.3d 1347, 1353-54 (7th Cir. 1996)). Where we confront
terms that are subject to competing definitions, “we
usually define them in reference to the terms they
appear with.” United States v. Taylor, 640 F.3d 255, 263
(7th Cir. 2011). Statutory interpretation “is guided not
(...continued)
RFPA, rejecting many of the same arguments advanced here
by appellants. The court did not reach the question of
Worth’s status under the RFPA, however, because it held
that the defendants had failed to establish that they were,
in fact, acting as agents of Worth, and thus, regardless of
whether Worth was a financial institution, they were not
covered entities.
10 No. 12-3372
just by a single sentence or sentence fragment, but by
the language of the whole law, and its object and pol-
icy.” United States v. Balint, 201 F.3d 928, 933 (7th Cir.
2000) (citations omitted).
Because the RFPA does not explicitly define “con-
sumer finance institution,” we begin with our analysis of
the plain and ordinary meaning of the phrase. Acknowl-
edging that we have on occasion regarded dictionaries
to be “a helpful resource in ascertaining the common
meaning of terms that a statute leaves undefined,”
Shlahtichman v. 1-800 Contacts, Inc., 615 F.3d 794, 799
(7th Cir. 2010), appellants cite various dictionary defini-
tions, primarily relying on Black’s Law Dictionary, which
defines “finance company” as “[a] nonbank company
that deals in loans either by making them or by pur-
chasing notes from another company that makes the
loans directly to borrowers,” and further defines “con-
sumer finance company” as “[a] finance company that
deals directly with consumers in extending credit.”
B LACK’S L AW D ICTIONARY 706 (9th ed. 2009). Appellants
also cite definitions of “consumer finance company” from
internet sources, one of which defines the term as: “A non-
bank lender. A consumer finance company does not
receive deposits, but does make loans to customers for
business or personal use. It derives its profits from the
interest on these loans. It is also called simply a finance
company.” T HE F REE D ICTIONARY B Y F ARLEX, http://
financial-dictionary.thefreedictionary.com/Consumer+
Finance+Company (last visited on May 23, 2013). Appel-
lants contend that both Worth and Mintco clearly
No. 12-3372 11
fall within these definitions because they are non-
bank entities who deal directly with customers to
provide and facilitate financing for business or
personal use.
These dictionary definitions do not carry the day for
appellants, however. As our court has previously cau-
tioned, “[d]ictionary definitions are acontextual,” United
States v. Costello, 666 F.3d 1040, 1044 (7th Cir. 2012), and
thus “must be used as sources of statutory meaning
only with great caution.” Id. at 1043. Here, when taken
in context, the meaning of the term “consumer finance
institution” is “narrowed by the commonsense canon of
noscitur a sociis—which counsels that a word is given
more precise content by the neighboring words with
which it is associated.” United States v. Williams, 553
U.S. 285, 294 (2008) (citations omitted); see also Costello,
666 F.3d at 1046 (“[A]djacent terms shed light on each
other’s meaning, . . . a light not to be found in a dic-
tionary . . . .”) (internal citation omitted). Under the
principle of noscitur a sociis, “the fact that ‘several items
in a list share an attribute counsels in favor of inter-
preting the other items as possessing that attribute as
well.’ ” Center for Individual Freedom v. Madigan, 697 F.3d
464, 496 (7th Cir. 2012) (quoting Beecham v. United States,
511 U.S. 368, 371 (1994)).
It is clear that all of the referenced entities surrounding
the phrase “consumer finance institution” in the
RFPA’s definition of “financial institution,” including
banks, card issuers, loan and trust companies, and credit
unions, convey considerably more than a tangential or
12 No. 12-3372
secondary relationship to the field of financing. Rather,
a primary reason each of these entities exists is to
provide financing and cash loans to the general public,
making these services a core function and purpose of
such businesses. To avoid broadening the meaning of the
term beyond what Congress intended when it enacted
the RFPA, we assign a meaning of “consumer finance
institution” with an eye toward “the company it keeps.”
Gustafson v. Alloyd Co., Inc., 513 U.S. 561, 575 (1995).
Applying that cannon of statutory construction here
brings us to the conclusion that Congress did not intend
“consumer finance institution” to include every retailer
that extends financing to a percentage of its customers
as part of its business, which would be the result if ap-
pellants’ definition were adopted.6
The nature of appellants’ businesses is readily distin-
guishable from that of the other entities listed in
the RFPA’s definition of “financial institution” and the
similarities proffered by appellants are both chimerical
and unavailing. Worth and Mintco provide financing
6
Appellants criticize the CFTC for failing to put forth its
own definition of “consumer finance institution.” Although the
CFTC has not proposed a specific definition, it referenced at
oral argument a number of entities, including small loan
companies, consumer discount companies, and household
finance companies, as examples distinct from the other nine
entities listed in the RFPA’s definition of “financial institu-
tions” but yet sufficiently similar to those entities to satisfy the
doctrine of noscitur a sociis and thus qualify as “consumer
finance institutions” under the RFPA.
No. 12-3372 13
primarily, if not solely, for the very narrow purpose of
enabling or facilitating their customers’ purchases of the
goods they sell, to wit, precious metals. No evidence
has been adduced that indicates that individuals who
receive credit from Worth or Mintco also obtain cash
loans or that they receive financing in amounts beyond
the amount needed to bridge the gap between their
down payments and the purchase prices of the pre-
cious metals which they are buying. In this way, the
provision of financing is not a defining characteristic
of appellants’ business; rather, it is merely a means to
an end, the real or primary goal of the transaction being
a sale of precious metals. Clearly, Worth and Mintco
are sellers, not financial institutions. This is, in fact,
how they identify themselves—as a wholesaler and
retailer of precious metals, respectively. Moreover, al-
though appellants claim to be “consumer finance insti-
tutions,” the loan contract which they use for their fi-
nancing transactions explicitly provides that any fi-
nancing that a borrower obtains through Worth’s
financing program is not to be used “for any personal,
family, household or other consumer purposes.” 7 Given
these facts, it is clear that neither Worth nor Mintco
qualifies as a “consumer finance institution,” and thus
they are not “financial institutions” under the RFPA.
Further, the RFPA is inapplicable to DSD because ap-
pellants’ only argument with regard to DSD is a “boot-
strap” argument, namely, that, as Worth’s agent, the
RFPA applies to DSD to the extent it applies to Worth.
7
A.R. at 226.
14 No. 12-3372
Any other argument likewise is not supported by the
evidence. The evidence submitted by appellants in
support of their contention that their business includes
making loans to the public at large for purposes other
than the purchase of their own precious metals 8 consists
of two charts, both of which relate to the period from
July 2011 to December 2012. According to the informa-
tion reflected in the charts, during that time period,
Worth made 4,441 loans totaling $246.7 million, and
Mintco made 139 loans totaling $12.3 million. Of these
loans, 572 of Worth’s loans totaling $5.8 million, and
nine of Mintco’s loans totaling approximately $20,000,
were loans “to the public at large for purposes other
than the purchase of precious metals from any Appel-
lant.” Supp. Mem. at 2.
However, these bottom line numbers do not in and of
themselves demonstrate that appellants provide loans
to members of the general public who are not their cus-
tomers for any purpose other than the purchase of
8
Following oral argument, we requested that appellants
supplement the record with documentation identifying loans
made by appellants to the public at large. Appellants argue
that the CFTC has waived any argument based on the rele-
vance of such loans because it failed to raise this issue
before the district court. However, the nature of appellants’
financing activities is relevant to the application of the
doctrine of noscitur a sociis, which was central to the district
court’s decision that appellants have challenged. Because
the CFTC raised this issue in the context of defending the
district court’s opinion on appeal, there has been no waiver.
No. 12-3372 15
precious metals. For example, Worth is affiliated with a
number of retailers, who, in turn, make sales to the
public. Mintco is the only such retailer who is an appel-
lant before us here. Thus, loans made to customers of
Worth’s other retailers for the purchase of precious
metals would fall within the category of loans “for pur-
poses other than the purchase of precious metals from
any Appellant,” but would clearly not be a loan to a mem-
ber of the general public unrelated to the purchase of
precious metals from Worth or its affiliated retailers. As
the CFTC points out, without more information re-
garding the identity of the borrowers and the purpose
of the loans, it is impossible to determine whether, for
example, these numbers represent situations in which
Worth has allowed existing customers who previously
purchased precious metals from Worth or its retailers
and have sufficient equity in their accounts to borrow
against that equity. Again, such loans, even if they
were for a purpose other than the purchase of precious
metals, would not necessarily demonstrate that appel-
lants are in the practice of making loans to individuals
who are not their customers. Thus, nothing about this
proffered evidence alters our analysis regarding the
nature of appellants’ business.
Nor are we persuaded by appellants’ argument that
we should adopt the definition of “financial institution”
contained in the Bank Secrecy Act (“BSA”), 31 U.S.C.
§ 5312, which specifically includes precious metal deal-
ers. See 31 U.S.C. § 5312(a)(2)(N). Although the RFPA
explicitly incorporates the broader definition set forth
16 No. 12-3372
in the BSA in certain provisions, none of those sections
are at issue here. Section 3414 of the RFPA provides
that “[f]or purposes of this section and sections 3415
and 3417 of this title insofar as they relate to the opera-
tion of [section 3414], the term ‘financial institution’ has
the same meaning as in subsections (a)(2) and (c)(1) of
section 5312 of title 31 [the BSA] . . . .” Section 3414 has
no application here, however, as it applies only when
the government is seeking the customer records of a
financial institution in connection with a counter-
intelligence, terrorism, or Secret Service investigation.
Because the RFPA explicitly incorporates the BSA’s
definition of financial institution only for this nar-
row purpose, there is no basis on which to conclude
that Congress intended it to apply to the type of
law enforcement investigation the CFTC is conducting
here.
For the foregoing reasons, we hold that appellants do
not qualify as “financial institutions” under the RFPA,9 and
9
The CFTC argues that, even if appellants were covered
“financial institutions” under the RFPA, the RFPA’s customer
notification provisions would still not be applicable because
the CFTC’s investigation falls within one of the enumerated
exceptions to the notification requirement. The exception
invoked by the CFTC provides in relevant part: “Nothing in
this chapter (except sections 3403, 3417 and 3418 of this title)
shall apply when financial records are sought by a Government
authority—(A) in connection with a lawful proceeding, investi-
gation, examination, or inspection directed at a financial
(continued...)
No. 12-3372 17
the judgment of the district court is therefore A FFIRMED.
(...continued)
institution (whether or not such proceeding, investigation,
examination, or inspection is also directed at a customer)
or at a legal entity which is not a customer . . . .” 12 U.S.C.
§ 3413(h)(1)(A). However, when the government seeks rec-
ords pursuant to this section, it must provide certification to
the target financial institution indicating that the investiga-
tion is directed at the institution. To our knowledge, although
the CFTC has offered to provide such a certification to appel-
lants, it has not yet done so. Thus, we do not reach the merits
of this argument (nor need we do so, given our determina-
tion that the RFPA does not apply to appellants in any event).
5-29-13