Full opinion text
MEMORANDUM ORDER AND OPINION SOTOMAYOR, District Judge. The two instant actions arise from a dispute between plaintiff Ping He (Hai Nam) Company Limited (“Ping He”) and defendant NonFerrous Metals (U.S.A.) Inc. (“NFM”) over a commodity futures trading account opened by Ping He with NFM in 1993. Ping He moves for summary judgment pursuant to Fed.R.Civ.P. 56, seeking the return of $350,000 it deposited into the account, on the grounds that NFM defrauded Ping He into opening the' account, engaged in unauthorized trading,' falsified an invoice, and misappropriated Ping He’s funds, all in violation of the Commodity Exchange Act, 7 U.S.C. § 1 et seq., and' the regulations promulgated thereunder. In opposing the motion, NFM claims that Ping He owes it more than $650,-000 in trading losses, and that triable issues of fact prevent the granting of summary judgment. In the related action, defendant Agricultural Bank of China (“Bank of China”) moves for summary judgment against NFM. NFM sues Bank of China for refusing it access to two letters of credit, totaling $800,000, which Ping He had established in favor of NFM upon opening the trading account. Bank of China now seeks dismissal of the action, arguing that it properly refused NFM access to the funds because NFM presented the Bank with fraudulent documentation. Finally, by separate motion, Ping He and Bank of China, who are represented by the same counsel, jointly move for sanctions against NFM and NFM’s counsel, pursuant to Fed.R.Civ.P. 11, based upon their alleged misconduct during this litigation. For the reasons discussed, the Court grants Ping He’s and Bank of China’s respective motions for summary judgment, and imposes sanctions upon NFM’s counsel. BACKGROUND The following facts are undisputed. Ping He and NFM are both entities owned by the People’s Republic of China. Ping He is a foreign corporation with its principal place of business in China. NFM, although owned by. the Chinese government, is a New York corporation with its principal place of business in Manhattan. NFM holds itself out as being in the business of soliciting orders for the purchase and sale of commodity futures. Once an order is placed with NFM, NFM arranges for the order to be executed on American and foreign markets through registered floor brokers. NFM, however, is not and has never been registered with the Commodity Future Trading Commission (“CFTC”), or with any federal or state regulatory body in the United States, in any capacity. In or about April 1993, Ping He agreed to open a futures trading account with NFM. The parties did not reduce their agreement to writing. However, pursuant to their oral agreement, all trades were to be non-disere-tionary, meaning that NFM was only authorized to execute trades for Ping He upon the express instructions of Ping He or Ping He’s designated agent. Toward that end, by letter dated April 27, 1993, Ping He advised NFM that it was authorizing Mr. Li Zheng of China National Metal Products Co. (“China Metals”) to act as Ping He’s agent in all matters relating to its futures trading account. (See Ex. 2 to Li Dep.). In the letter, Ping He specified that China Metals was authorized “to do some future business of metal products directly or through some agent with you on our behalf.” Id. (emphasis added). Also in connection with opening the account, on April 19 and April 23, 1993, Ping He established two' standby letters of credit in favor of NFM with Bank of China, in the amounts of $300,000 and $500,000, to cover trading margin maintenance, losses and expenses associated with the account. The terms of the letters of credit provided that NFM could draw upon the funds only after presenting Bank of China with certain documentation, including (i) a signed declaration by NFM stating that the amount being drawn was owed to NFM in relation to Ping He’s commodity dealings, and (ii) a certified copy of a telex dispatched to Ping He within five working days prior to drawing from the standby letters of credit. (See Ex. A to Rosenthal Aff.) In May 1993, Ping He also made an initial deposit of $50,000 into the account held by NFM. Unfortunately, nearly all facts concerning what actually happened to Ping He’s trading account after it was opened are in dispute, including: whether NFM conducted any trading for Ping He; when such trading began and ended; whether trades on Ping He’s account were authorized or unauthorized; and whether trades conducted for Ping He resulted in profits or losses. The parties additionally dispute whether Ping He knew when it opened the account that NFM was not registered with the CFTC. What is clear and uncontroverted, however, is that on May 4, 1993, NFM tried to draw down on the two letters of credit, claiming that Ping He had lost $800,000 as the result of trading. Bank of China refused NFM access to the funds. Approximately one month later, on June 8, 1993, China Metals sent NFM a fax suspending the account. The letter stated: We are very pleased to see that we have made a little profits [sic] through those deals done with your brokerage.... As a result of our internal arrangements, we would like to inform you that we have suspended our future trading account with your brokerage effective from today. Therefore, the said standby L/Cs [letters of credit] will be canceled by an official notice given tomorrow [to Bank of China]. (Ex. C to Rosenthal Aff.) China Metals’ June 8 letter also requested that NFM provide it with a list of all trades executed on the account, together with a list of all commissions charged. Id. Soon afterwards, NFM sent China Metals an account invoice, dated June 16, 1993 (hereafter “the June 16 invoice”). (Ex. D to Rosenthal Aff.) The June 16 invoice stated that $344,893 was due on Ping He’s account (not $800,000, as NFM had contended when it sought to draw upon the letters of credit). That figure consisted of $104,500 in alleged trading losses and $240,393 in commissions and interest, for trading activity between the dates of April 22 and April 29, 1993. Thereafter, NFM repeatedly wrote to China Metals in June and July of 1993, demanding payment of the $344,893. (See June 28, June 30, and July 8, 1993 letters from NFM to China Metals; Ex. E to Rosenthal Aff.) Several months later, on December 9,1993, Ping He wired NFM the sum of $300,000. It is also undisputed that at some point during 1993, NFM converted for its own use Ping He’s $50,000 initial deposit. Ping He brought the instant suit against NFM on June 2, 1994, claiming that NFM defrauded it at every step of their dealings. First, Ping He claims, NFM misrepresented itself as a registered commodity broker in order to induce Ping He to open an account with NFM. (Complaint ¶ 7.) Ping He further claims that, after the account opened, neither it nor China Metals ever authorized NFM to execute trades on its behalf, but that NFM nevertheless improperly charged it for large trading losses. According to Ping He, NFM either engaged in unauthorized trading on Ping He’s account, charged Ping He for fictitious trades, or fraudulently allocated to Ping He’s account losing trades that had been undertaken for other customers. Whichever was the case, Ping He contends that NFM’s fraudulent conduct is evinced by the fact that NFM has been unable to produce any records reflecting trades ordered by Ping He or China Metals, or showing that the losing trades charged to Ping He were in fact made for Ping He’s account. In addition, Ping He contends that NFM falsified the June 16 invoice, charged it grossly excessive commissions in violation of their agreement, and presented fraudulent documents to Bank of China in an attempt to draw upon the two standby letters of credit. Finally, Ping He contends that documents produced by NFM during discovery show that any trades conceivably executed by NFM on Ping He’s behalf resulted in profits, not losses. By its Complaint, Ping He seeks .the return of the $350,000 it paid NFM (the $50,000 May 1993 payment and the $300,000 December 1993 payment) based upon NFM’s alleged fraud, unauthorized trading, conversion of funds, breach of contract and breach of fiduciary duty. Not surprisingly, NFM offers a rather different version of events. While conceding that it never received trading instructions from Ping He or China Metals (see Wang Aff. ¶ 31), NFM maintains that all of the trades it conducted for Ping He were authorized by NonFerrous B.M. Corp. (“B.M.Corp.”), a private New Jersey corporation (unrelated to NFM and Ping He) that China Metals allegedly retained to give trading instructions for Ping He’s account. In effect, NFM claims that a two-tiered agency structure existed: Ping He authorized China Metals to act as its agent, which in turn authorized B.M. Corp. to act as its agent. NFM contends that it traded for Ping He upon the specific instructions of B.M. Corp., that it kept track of the trades for Ping He in an account labeled the “ZZ” account, and that such trades resulted in large losses. Furthermore, NFM maintains that Ping He knew from the outset that NFM was not registered with the CFTC. According to NFM, it had no reason to misrepresent its registration status because it was at all times legally exempt from registration. Thus, in its answer to the Complaint, NFM denied all allegations of wrongdoing and counterclaimed against Ping He for $650,000 that it claimed was still owed. (As discussed below, NFM has frequently changed its position, both prior to and during this litigation, as to how much Ping He owes it.) Furthermore, on August 26, 1994, NFM filed a- separate action against Bank of China for failing to honor the two standby letters of credit after NFM allegedly presented the bank with the required documentation. A. Procedural Background The motions presently before the Court have a long history. Ping He and Bank of China first moved for summary judgment and sanctions against NFM in or about August, 1996. At that time, NFM cross-moved for summary judgment and sanctions. Finding both sides’ briefing to be grossly inadequate, on February 11, 1997, I denied' all parties’ motions with leave to renew. Ping He and Bank of China subsequently refiled their joint motions for summary judgment and sanctions in May 1997. In response, NFM again cross-moved for summary judgment and sanctions against Ping He and Bank of China, and also moved to dismiss Ping He’s Complaint pursuant to Fed. R.Civ.P. 9(b). At a conference held on August 22, 1997, I denied all of NFM’s motions and reserved decision on Ping He’s and Bank of China’s motions for summary judgment and sanctions pending the submission of supplemental briefing on certain issues pertaining to NFM’s registration status. The Court has now received the necessary briefing and is finally ready to consider the outstanding motions. DISCUSSION I. Standard of Review Summary judgment is appropriate if “there is no genuine issue as to any material fact and ... the moving party is entitled to judgment as a matter of law.” Fed.R.Civ.P. 56(c). A court’s role on a motion for summary judgment is “not to resolve disputed issues of fact but to assess whether there are any factual issues to be tried, while resolving ambiguities and drawing reasonable inferences against the moving party.” Knight v. U.S. Fire Ins. Co., 804 F.2d 9, 11 (2d Cir.1986) (citing Anderson v. Liberty Lobby Inc., 477 U.S. 242, 249, 106 S.Ct. 2505, 2510, 91 L.Ed.2d 202 (1986)). In seeking summary judgment, the moving party has the initial burden of demonstrating the absence of a genuine issue of material fact. See Celotex Corp. v. Catrett, 477 U.S. 317, 323, 106 S.Ct. 2548, 91 L.Ed.2d 265 (1986). Once the mov-ant satisfies its initial burden, the nonmoving party must then come forward with “specific facts showing that there is a genuine issue for trial.” . Fed.R.Civ.P. 56(e). If a court determines that the “record taken as a whole could not lead a rational trier of fact to find for the nonmoving party, there is no genuine issue for trial.” Porky Prods. v. Nippon Express U.S.A., Inc., 1 F.Supp.2d 227, 230 (S.D.N.Y.1997) (quoting Matsushita Elec. Indus. Co. v. Zenith Radio Corp., 475 U.S. 574, 587, 106 S.Ct. 1348, 1356, 89 L.Ed.2d 538 (1986)). See also Anderson, 477 U.S. at 251-52, 106 S.Ct. at 2512 (the.relevant inquiry is “whether the evidence presents a sufficient disagreement to require submission to a jury or whether it is so one-sided that one party must prevail as a matter of law”). II. Overview of Statutory Scheme The Commodity Exchange Act, as amended by Congress in 1974, 7 U.S.C. § 1 et seq. (“CEA” or “the Act”), established the Commodity Futures Trading Commission (CFTC) and erected a comprehensive statutory scheme governing the trading of commodity futures by persons in the United States. Congress passed the CEA in- response to concerns of widespread abuses in commodity futures trading, and in order to protect investors amid “the volatile and esoteric futures trading complex.” CFTC v. Schor, 478 U.S. 833, 836, 106 S.Ct. 3245, 92 L.Ed.2d 675 (1986) (quoting H.R.Rep. No. 93-975, p. 1 (1974)). The CEA charges the CFTC with enforcement of the Act, and grants the CFTC broad discretion to promulgate rules and regulations in furtherance of the Act’s goals. Central to the Act’s regulatory scheme are its registration requirements, which have been hailed as “the kingpin in this statutory machinery, giving the [CFTC] the information about participants in commodity trading which it so vitally requires to carry out its other statutory functions of monitoring and enforcing the Act.” CFTC v. British American Commodity Options Corp., 560 F.2d 135, 139-40 (2d Cir.1977). The registration requirements ensure that persons dealing in commodities meet certain minimum financial and fitness requirements, and enable the CFTC to monitor the trading activities of market members. See 7 U.S.C. § 6f. Because of their critical importance, the CEA’s registration requirements apply to nearly every class of professionals who deal in commodities. Thus, under the Act, anyone who acts as a broker and executes sales of commodities on the trading floor of a contract market must be registered as a broker under § 4e. 7 U.S.C. § 6e. Futures commission merchants (“FCMs”), who do not trade themselves on the floor, but who, like NFM, solicit transactions which are then executed through brokers, must also register, pursuant to § 4d. 7 U.S.C. § 6d. Even a person who is simply “associated” with an FCM must register. See 7 U.S.C. § 6k. See CFTC Interpretative Letter No. 97-44 [1996-1998 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 27,084; 1997 WL 348744, at *2 (Jun. 9, 1997) (“The registration requirements serve to screen unfit persons from dealings with customers and thus represent an important customer safeguard. To assure that these requirements reach all persons involved in customer solicitations, the registration requirements have been construed flexibly to require the registration of persons who participate even indirectly in such solicitations.”) Those who either fail to register or who misrepresent their registration status can be criminally prosecuted. See 7 U.S.C. §§ 6h, 13(a)(2) (making it a felony punishable by a $1 million fine or 5-year’s imprisonment for any person falsely to represent himself or herself as registered); 7 U.S.C. § 6d(l) (making it unlawful for any person to operate as an FCM unless registered). Limited exemptions to the Act’s registration requirements do exist, however. One such exemption, set forth in CFTC Rule 3.10, applies to persons who trade “solely for proprietary accounts.” 17 C.F.R. § 3.10(e). The term “proprietary account,” as defined in Rule 1.3(y), includes an account carried by a corporation for “a business affiliate that directly or indirectly is controlled by or is under the common control with such ... corporation.” 17 C.F.R. § 1.3(y). Here, NFM claims that, because it is owned by the Chinese government and traded solely for affiliated companies also under the common ownership and control of the Chinese government, it at all times fell within the “proprietary account” exemption and did not need to register under the Act. Ping He counters that NFM did not trade “solely” for Chinese-owned accounts and, therefore, can claim no exemption. Significantly, however, even if NFM did fall within the “proprietary account” exemption, Rule 3.10 conditions that exemption upon “such a person remaining] subject to all other provisions of the Act and of the rules, regulations and orders thereunder.” 17 C.F.R. § 3.10(c). Thus, regardless of NFM’s registration obligations, NFM was at all times obligated to comply with the CEA provisions and CFTC rules regulating the conduct of FCMs. See CFTC Interpretative Letter 88-15, [1987-1990 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 24,296 (Aug. 10, 1988) (emphasizing that entities exempt from registration under Rule 3.10(c) still must comply with all provisions of the CEA and CFTC Rules); CFTC Interp. Letter No. 89-7, [1987-1990 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 24,479 (Jun. 22, 1989) (same). As stated, a key purpose of the CEA is to protect customers against fraudulent and abusive trading practices by FCMs and other market participants. Toward that end, § 4b of the Act makes it unlawful for FCMs “to cheat or defraud or attempt, to cheat or defraud” investors, “willfully to make or cause to be made ... any false report or statement ... [or] any false record” of sales involving futures contracts, or to engage in unauthorized trading by “willfully and knowingly” buying or selling commodities on another’s behalf “without the[ir] prior consent.” 7 U.S.C. § 6b(a). Also, § 4g of the Act requires FCMs to maintain intelligible daily trading records for each customer, and to report to customers on their transactions, in the manner prescribed by the CFTC. 7 U.S.C. § 6g. In that regard, the CFTC has promulgated Rules 1.33 and 1.35, setting forth strict record-keeping and reporting requirements. Rule 1.35 requires FCMs to keep “full, complete, and systematic records” of all transactions relating to each customer, including order forms, signature cards, journals, ledgers, canceled checks, and any other notations recorded in the regular course of business. 17 C.F.R. § 1.35(a). Rule 1.35 also requires FCMs who receive customer orders to prepare “immediately” a written record of the order that contains the account identification number and is timestamped to the nearest minute of receipt. 17 C.F.R. § 1.35(a-l)(l). Finally, to prevent the commingling of trades for different customers, Rulé 1.35 requires FCMs to maintain “a record of transactions which will show separately for each account” all future transactions and commodity options transactions executed, including date, price, quantity, market, commodity and future. 17 C.F.R. § 1.35(b)(2). As for reporting, Rule 1.33 requires FCMs to send customers monthly statements setting forth, among other things, the profits or losses realized upon trades and all financial charges assessed a customer during the monthly reporting period. 17 C.F.R. § 1.33. In addition, CFTC Rule 1.55 provides that, even before a futures trading account can even be opened, FCMs must furnish customers with a risk disclosure statement, and obtain the customer’s signature stating that he or she received and understood the risks disclosed. See 17 C.F.R. § 1.55. The CEA empowers the CFTC to bring enforcement actions against violators of the Act and CFTC rules. See 7 U.S.C. § 15. Significantly, the Act also provides several avenues by which injured investors can obtain redress for violations of the Act. First, § 14 of the CEA, enacted by Congress in 1974, provides a reparations procedure whereby persons' aggrieved by violations of the Act or CFTC rules can seek to recover damages from a registered industry professional by filing a complaint with the CFTC. See 7 U.S.C. § 18(a). Complaints brought under § 14 are adjudicated by administrative law judges or presiding CFTC officers, and reparations awards thereunder are enforceable in federal district court. Id. Separate and apart from this reparations procedure, § 22 of the Act, enacted in 1982, provides a private right of action permitting investors to sue directly in federal court for “actual damages” caused by another’s violations of the Act. 7 U.S.C. § 25(a). It is pursuant to § 22 that Ping He now seeks to recover damages. Finally, the Act mandates each contract market to provide an arbitration mechanism under which parties can agree to arbitrate any dispute arising under the Act’s provisions. See 7 U.S.C. §§ 7a(ll); 25(a)(2). III. Ping He’s Motion for Summary Judgment Although the Complaint alleges numerous common law bases for recovery, Ping He moves for summary judgment based solely upon NFM’s alleged violations of the CEA. First and foremost, Ping He argues that summary judgment is required because NFM operated as an unregistered FCM in violation of § 4d. According to Ping He, this violation alone entitles it to disgorgement of the $350,000 it paid NFM. As a second, independent ground for summary judgment, Ping He argues that NFM violated CFTC Rules 1.33, 1.35 and 1.55, in failing to make required disclosures and maintain proper records. Finally, Ping He seeks summary judgment on the ground that NFM committed fraud in violation of § 4b of the Act by engaging in unauthorized trading and falsely reporting losses to Ping He. NFM opposes summary judgment on the grounds that Ping He (i) failed to raise the CEA in its Complaint as a basis for recovery, (ii) lacks standing to sue under the CEA, and (iii) ratified NFM’s conduct by paying NFM $300,000 in December 1993, months after trading on Ping He’s account had ceased. NFM also maintains that it did not violate any of the CEA’s provisions or CFTC rules, but that whether or not it did raises questions of fact that must be determined at trial. (i) Adequacy of the Complaint The Court first addresses NFM’s contention that Ping He should be prohibited from seeking summary judgment based upon violations of the CEA because Ping He failed to cite the CEA, or any of the regulations promulgated thereunder, as a basis for recovery in the Complaint. This argument ignores the liberal notice pleading rules that have long been a part of the federal courts. Under the Federal Rules of Civil Procedure, a complaint need not specify the legal theory or statutory provisions upon which a claim is grounded, so long as the facts alleged in the complaint are sufficient to give the defendant notice of the nature of the claim. See Fed. R.Civ.P. 8(a) (a complaint need only set forth “a short and plain statement of the claim showing that the pleader is entitled to relief’ and “a demand for judgment for the relief the pleader seeks”). As the Supreme Court stated in Conley v. Gibson, 355 U.S. 41, 47-48, 78 S.Ct. 99, 103, 2 L.Ed.2d 80 (1957), “simplified ‘notice pleading’ is made possible by the liberal opportunity for discovery and other pretrial procedures established by the Rules to disclose more precisely the basis of both claim and defense and to define more narrowly the disputed facts-, and issues.” See also Flickinger v. Harold C. Brown & Co., Inc., 947 F.2d 595, 600 (2d Cir.1991) (“federal pleading is by statement of claim, not by legal theory”). Here, while it is true that Ping He’s Complaint does not allege specific violations of the CEA, or mention the CEA at all, the Complaint alleges that NFM’s chairman induced Ping He to open a trading account by misrepresenting NFM to be a registered commodity broker (Complaint ¶¶ 7-10); that NFM engaged in unauthorized trading in Ping He’s name (Complaint' ¶¶ 5, 15-16); that NFM presented fraudulent declarations to Bank of China (Complaint ¶¶ 22-23); that NFM charged Ping He for $344,893, although it “knew that Ping He was not indebted to [NFM] for any amounts” (Complaint ¶¶ 17, 35); and that NFM wrongfully “took and converted for its own usage and benefit” a total of $350,000 of Ping He’s money (Complaint ¶¶ 5, 20). These allegations are more than sufficient to permit claims for violations of the CEA’s registration and anti-fraud provisions. A somewhat closer question is whether Ping He’s Complaint alleges sufficient facts upon which to base claims for relief under the CFTC record-keeping, reporting and risk disclosure rules. The Complaint contains no allegations at all concerning NFM’s failure to report, provide a risk disclosure statement, or maintain proper records. Nevertheless, I find that these claims should also be permitted. The futures trading activities at issue in Ping He’s Complaint are so obviously within the regulatory province of the CEA and CFTC that NFM could not possibly be surprised by Ping He’s reliance upon the CFTC rules for recovery. More importantly, the extremely long discovery period in this case provided both sides with ample notice of the legal and factual claims and defenses upon which the parties would ultimately rely, including Ping He’s claims the NFM failed to keep adequate records and make required reports and disclosures. In fact, these issues have been a part of the three rounds of briefing on the instant motion, and of the intervening discovery in the action. Additionally, violations of Rules 1.33, 1.35 and 1.55 have often been treated by the CFTC as evidence of fraud, a charge the Complaint clearly makes. See, e.g., Knight v. First Comm. Fin. Group, Inc., [1994-1996 Transfer Binder] Fut. Comm. L. Rep. (CCH) ¶ 26,515, at 43,319 (Oct. 5, 1995) (violations of Rules 1.55 were evidence that defendant engaged in scheme to cheat and defraud plaintiff); In re GNP Commodities Inc., [1990-1992 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 25, 360, at 39,214 (Aug. 11,1992) (defendant’s failure to place account numbers on order tickets, in violation of Rule 1.35, made possible the fraudulent allocation of trades). Finally, in the case of NFM’s alleged internal record-keeping violations, under Rule 1.35, Ping He could not reasonably have been expected to know of such violations prior to discovery and, therefore, good cause exists to permit it to add these violations once discovered. For these reasons, I find that the Complaint is adequate to permit Ping He’s claims for recovery based upon the CFTC rules, as well as the CEA itself. To reject these claims at this late hour would not serve the spirit of the Federal Rules of Civil Procedure, which “favor[], as a matter of high priority, that disputes be resolved on their merits” McLearn v. Cowen & Co., 660 F.2d 845 (2d Cir.1981), and which direct that “[a]ll pleadings shall be so construed as to do substantial justice.” Fed.R.Civ.P. 8(f). (ii) Standing Prior to 1982, the CEA was silent on the subject of private judicial remedies for persons injured by violations of the CEA. Nevertheless, federal district and appeals courts had routinely recognized an implied private cause of action under various provisions of the statute. In 1982, the Supreme Court endorsed this view, holding that Congress intended for investors to have the right to sue for damages under at least five separate provisions of the CEA, including § 4b. Merrill, Lynch, Pierce, Fenner & Smith, Inc. v. Curran, 456 U.S. 353, 102 S.Ct. 1825, 72 L.Ed.2d 182 (1982). In so holding, however, the Court invited Congress to clarify its intent. Id., 456 U.S. at 394-95, 102 S.Ct. at 1847-48. Congress did so almost immediately thereafter by enacting § 22, which explicitly provides a right of action for violations of the Act. 7 U.S.C. § 25. Specifically, § 22 provides that any person (other than certain specified organizations not involved in this case) who violates the CEA “or who willfully aids, abets, counsels, induces, or procures the commission of a violation” of the Act, “shall be liable for actual damages” caused by the violation. 7 U.S.C. § 25(a)(1). Federal district courts have exclusive jurisdiction to hear suits brought under § 22. 7 U.S.C. § 25(e). Furthermore, with certain exceptions not applicable here, the private rights of action created by § 22 are “the exclusive [judicial] remedies ... available to any person who sustains loss as a result of any alleged violation of [the Act].” 7 U.S.C. § 25(a)(2). To maintain a suit under § 22, however, it is not enough to allege that a defendant violated provisions of the Act. A plaintiff must also allege that (1) it incurred “actual damages” from the alleged violation, and (2) that the damages resulted from one or more of the four transactions enumerated in subsections (A) through (D). See 7 U.S.C. § 25(a)(l)(A)-(D). As to this second prerequisite, Ping He bases its standing upon the transaction described in § 22(a)(1)(B), in that Ping He “deposited with or paid to [NFM] money ... in connection with any order” of a futures contract. 7 U.S.C. § 25(a)(1)(B). NFM does not challenge Ping He’s satisfaction of either of these prerequisites to maintaining an action under § 22. However, NFM claims that Ping He lacks standing to sue for lack of privity, i.e., because Ping He delegated its authority to deal with NFM to agents that are not party to this lawsuit. This argument is both legally unsupported and flatly contradicted by NFM’s own statements throughout this litigation. Even if direct personal contact between a plaintiff and defendant were required to maintain an action under § 22 — and NFM has presented no legal authority indicating that it is— NFM conceded that privity exists when it stated in its 3(g) statement that “Ping He provided the sum of $300,000.00 to NFM ... in December 1993[and] ... the sum of $50,-000.00 to NFM as an initial margin.” (NFM’s 3(g) Statement ¶¶ 6-7.) NFM has repeated these contentions in its briefs, supporting affidavits, and at oral argument. (See NFM 1997 Opp. Brief at 13; Wang Aff. ¶ 49; Transcript of May 30, 1997 hearing, at 13.) Moreover, NFM has counterclaimed directly against Ping He on the ground that Ping He, and not some other entity or agent, owes it $650,000 in trading losses. For NFM to take these positions, yet argue that Ping He lacks privity with NFM, is preposterous. However, there are two harder questions — both critical to whether Ping He is entitled to an award of damages in this action — which neither party has addressed. Those questions are: first, whether Ping He has satisfied the “actual damages” requirement for its claims under §§ 4b and 4d of the CEA, and Rules 1.33, 1.35 and 1.55; and second, whether private litigants have standing to sue for violations of the CFTC rules. I will address each of these questions in turn. A. “Actual Damages” Even if NFM violated every provision of the CEA or the CFTC rules, under the express language of § 22, Ping He is only authorized to bring suit, and can only recover, for those violations that caused Ping He to suffer “actual damages.” See 7 U.S.C. 25(a). The term “actual damages” has been applied by courts in a straightforward manner to require a showing of actual injury caused by the violation. See Wigod v. Chicago Mercantile Exchange, 981 F.2d 1510, 1521-22 (7th Cir.1992) (“under the explicit terms of the statute,” a private litigant has no standing to sue under CEA provisions unless violation of that provision caused him “actual injury”); Apex Oil Co. v. DiMauro, 744 F.Supp. 53, 56 (S.D.N.Y.1990) (holding that “no damages [we]re recoverable” for CEA violations where plaintiffs “ha[d] not suffered damages but ha[d] actually prospered as a result of the alleged wrongdoing”); Kwiatkowski v. Bear Stearns Co., Inc., 1997 WL 538819, at * 29, 31 (S.D.N.Y. Aug. 27, 1997) (dismissing damages claim where plaintiff alleged no facts showing that he suffered any loss from the alleged violation). Cf. Curran, 456 U.S. at 388, 102 S.Ct. at 1844 (prior to enactment of § 22, plaintiffs who brought suit under CEA’s implied rights of action were likewise required to establish “the causal connection between the violations and the injury, and the amount of damages” in order to have standing). As discussed below, in the instant case, only some of Ping He’s claims bear a causal link to its loss of $350,000; those claims that do not must be dismissed. (i) Ping He’s § 4d claim: failure to register First and foremost, Ping He seeks to recover $350,000 on the basis that NFM failed to register as an FCM, in violation of § 4d of the Act. However, Ping He offers no evidence or basis for believing that it incurred damages simply by dealing with an unregistered FCM. As a logical matter, it is unlikely that any private litigant could show “actual damages” flowing from a § 4d violation because, as courts and the CFTC have recognized, an FCM’s unregistered status, in and of itself, does not cause another financial damage. See Marshall v. Green Giant Co., 942 F.2d 539, 546 (8th Cir.1991) (“A party does not suffer damage merely by dealing with an unregistered FCM; failure to register, without more, does not cause pecuniary loss.”); Hofmayer v. Dean Witter & Co., Inc., 459 F.Supp. 733, 739 & n. 4 (N.D.Ca.1978) (“[t]he mere failure to register does not amount to fraud, deceit or misrepresentation sufficient to justify rescission.... [A] causal connection between the failure to register and the damage would have to be alleged.”); Hall v. Paine Webber Jackson & Curtis, Inc., [1986-1987 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 23,317, at 32,890 n. 4 (Oct. 8, 1986) (customer’s damages were not proximately caused by violation of registration provision). If Ping He can assert any damages claim based upon NFM’s unregistered status, it is one under § 4b of Act, on the grounds that NFM fraudulently induced it to open a futures trading account by misrepresenting or concealing its unregistered status. Cast as a fraudulent inducement claim, there is a causal link between NFM’s alleged violation of the statute and Ping He’s out-of-pocket losses because, the argument goes, “but for” NFM’s misrepresentation or concealment of its unregistered status, a material fact, Ping He would not have opened the account with NFM and would not have incurred any losses. Notably, the CFTC has repeatedly endorsed this analytical approach in § 14 reparations proceedings. See Hall v. Paine Webber Jackson & Curtis, Inc., [1986-1987 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 23,317, at 32,890 n. 4 (Oct. 8, 1986) (holding that damages are recoverable under § 4b for defendant’s failure to disclosure unregistered status; damages are not, however, proximately caused by violation of registration provision); Stern v. G.H. Miller & Co., [1990-1992 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 25,338, at 39,104 n. 2 (Jul. 21, 1992) (holding that a defendant’s failure to disclose his unregistered status is actionable as a violation of § 4b, not § 4d). It is not clear why Ping He failed to include a fraudulent inducement claim in this motion, particularly given that the Complaint pleads such a claim. (See Complaint ¶¶ 7-9, alleging that “[i]n or about 1993, Xiao Tongying, Chairman of [NFM], was introduced to Ping He and represented that ... [NFM] was a licensed commodity broker,” and that Ping He opened an account with NFM “relying on such representations.”) However, even had Ping He’s asserted a fraudulent inducement claim, summary judgment would have been denied because a material factual dispute exists as to whether NFM misrepresented or concealed its unregistered status from Ping He. Ping He has not submitted any évidence, in. the form of affidavits or otherwise, to support the Complaint’s allegations of fraudulent inducement. NFM, on the other hand, has submitted the affidavit of Xuao Tongying, the person alleged to have misrepresented NFM’s registration status to Ping He, in which Mr. Xiao denies that any false representations were made. Specifically, Mr. Xiao states: [the allegation] that I made representations that NFM was a licensed commodity broker ..is completely untrue. I never was introduced or spoke with any employee or officer of Ping He and never made any of [the] representations set forth in ... the complaint.... Moreover I never . made any such representations to [ ] China Metals or [ ] B.M. [Corp.]. There was never any direct communication between Ping He and NFM. Indeed, Ping He does not identify the individual I allegedly spoke or communicated with. This allegation is a total sham. (Xiao Aff. ¶¶ 2-3, 5-6.) Mr. Xiao further contends that “NFM always made it clear to its customers that it was not a licensed commodity broker before its representation of them.” (Xiao Aff. ¶¶ 7-8.) Mr. Xiao’s affidavit sufficiently rebuts Ping He’s allegations of fraudulent inducement so as to raise a material factual issue as to whether any misrepresentation was made. Accordingly, even had Ping He asserted a fraudulent inducement claim Under § 4b, summary judgment could not have been granted on that basis. (ii) Ping He’s § 4b claims: unauthorized trading, false invoice Now I assess whether Ping He has established a causal link between its damages and NFM’s alleged unauthorized trading and preparation of a false invoice, in violation of § 4b. As to these claims, I find that the “actual damages” element has been met. Certainly, if all of NFM’s trading for Ping He was unauthorized, then NFM’s conduct would have directly caused Ping He’s loss of $350,000, the amount it paid NFM for trading losses and associated commissions. Likewise, if NFM sent Ping He a falsified invoice reporting losses that did not exist, then Ping He would be entitled to recover the money it paid on that invoice. Of course, it remains to be determined whether these violations can be found at the summary judgment stage, or whether disputed factual issues require these issues to go to trial. That examination will be undertaken later in this opinion. At present, however, I find that because Ping He’s claims under § 4b satisfy the “actual damages” element, Ping He will be entitled to recovery if it proves the violations alleged. (iii) Ping He’s claims under Rules 1.33, 1.35 and 1.55 As mentioned earlier, Rule .1.33 requires FCMs to send customers monthly statements setting forth, among other things, the profits or losses realized upon trades and all financial charges assessed a customer during the monthly reporting period. 17 C.F.R. § 1.33. Here, there is no question that NFM violated Rule 1.33. NFM has not produced copies of any monthly reports it prepared for Ping He’s account, nor does NFM maintain that it ever prepared such reports for Ping He, or Ping He’s agent. Indeed, the only evidence of any report prepared by NFM in connection with Ping He’s account is the June 16 invoice, which China Metals specifically requested. Nevertheless, Ping He’s damages claim under Rule 1.33 must be dismissed because Ping He has never contended that NFM’s failure to issue it monthly reports between April 1993, when Ping He opened its account, and June 1993, when it suspended the account, is what caused its loss of $350,000. Accordingly, I dismiss Ping He’s Rule 1.33 claim for bearing no connection to the damages it now seeks. Ping He has, however, made a case for actual injury by NFM’s violation of Rule 1.35. As indicated above, Rule 1.35 imposes numerous record-keeping requirements upon FCMs. The requirements are intended to ensure the complete segregation of customer accounts, the correct attribution of trades to the customers who ordered them, and. the maintenance of detailed records for every transaction relating to each customer account. See 17 C.F.R. § 1.35. Here, Ping He claims that NFM failed so miserably to comply with any of Rule 1.35’s requirements, that any demand by NFM for the payment of trading losses was guaranteed to be false because NFM had no way of itself knowing or checking what trades had been done for Ping He, and whether those trades had produced profits or losses. Indeed, Ping He claims that NFM’s violations of Rule 1.35 were so pervasive, as to suggest strongly the commission of fraud. See Knight v. First Comm. Fin. Group, Inc., [1996-1998 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 26,-942, at 44,553 (Jan. 14, 1997) (holding that “[violations of Rule 1.35 may be indicative of fraudulent trading”); In re Preskin, [1990—1992 Transfer Binder] Comm. Fut. L. Rep. (CCH) ¶ 25, 235 (Feb. 10, 1992) (treating record-keeping violations as evidence of fraud scheme). I agree that if NFM’s violation of Rule 1.35 is demonstrated to be as pervasive as Ping He claims, then a causal connection will have been established between the NFM’s violation of the rule and Ping He’s payment of $350,000 for completely unverifiable trading losses. Finally, I must decide whether Ping He can maintain a claim under Rule 1.55. As stated earlier, Rule 1.55 prohibits any FCM from opening a commodity futures account for any customer unless the FCM has first provided the customer with a risk disclosure statement containing the prescribed language under the rule, and received a signed acknowledgment from the customer stating that he or she received and understood the statement. 17 C.F.R. § 1.55. As in the case of Ping He’s Rule 1.33 claim, there is no question that NFM violated Rule 1.55. It is undisputed that NFM did not provide Ping He, or any agent of Ping He, with the required risk disclosure statement, either before it opened Ping He’s account or any time thereafter. However, Ping He also has never alleged, in its Complaint or any time thereafter, that this was the cause of its losses, or that it was unaware of the risks associated with commodity futures trading. While it would seem proper, therefore, to dismiss Ping He’s Rule 1.55 claim for failure to establish “actual damages,” the CFTC has held in reparations proceedings that Rule 1.55 is so critical to protecting customers that, when an FCM violates the rule, a causal link between the customer’s damages and the Rule 1.55 violation will be presumed. See Sher v. Dean Witter Reynolds, Inc., [1984-1986 Transfer Binder] Comm. Fut. L. Rep. ¶ 22,266 at 29,371 (Jun. 13, 1984) (violations of Rule 1.55 automatically give rise “to a rebuttable presumption that the customer relied upon the FCM’s failure to disclose the facts contained in the risk disclosure statement” in agreeing to open a trading account). In order to rebut the presumption of causality, the FCM “bears the heavy burden of presenting facts which compel the conclusion that, had the risk disclosure statement been presented, the customer would have been indifferent to the facts revealed therein.” Id. If that burden is not met, then all losses incurred by the customer relating to the account will be regarded as proximately caused by the Rule 1.55 violation. Id., at * 12. See, e.g., Thompson v. Merrill Lynch, Pierce, Fenner and Smith, Inc., [1984-1986 Transfer Binder] Comm. Fut. L. Rep. ¶ 22,531, at 30,293 (Mar. 12, 1985) (awarding customer all trading losses where FCM was unable to produce copy of risk disclosure statement it claimed to have sent, and failed to meet burden of showing that customer was aware of trading risks through other means). On the basis of CFTC precedent, I will not dismiss Ping He’s Rule 1.55 claim for failure to show “actual damages.” However, I also cannot decide this claim upon summary judgment. Neither side has submitted any factual information whatsoever concerning what risk disclosures, if any, NFM made to Ping He (or its agent), what prior experiences Ping He had in futures trading, or any anything else that might bear upon the presumption issue. Certainly, it is NFM’s burden to present such evidence, but in the face of a completely bare record, and both sides’ failure to address the relevant legal or factual elements bearing upon this Rule 1.55 claim, it cannot be decided without further factual development. For the reasons stated, the Court dismisses Ping He’s claim of registration violations under § 4d, and its claim of monthly reporting violations under Rule 1.33, for failure to meet the “actual damages” prerequisite. Furthermore, I deny summary judgment on Ping He’s claim under Rules 1.55 for the reasons stated. All that remains to be decided, therefore, is whether, Ping He can prevail, at the summary judgment phase, upon its claims under § 4b, for NFM’s alleged unauthorized trading and preparation of a false invoice, and under Rule 1.35, for record-keeping violations. Before turning to these outstanding issues, however, the Court first must resolve the second important standing issue not addressed by the parties, namely whether violations of Rule 1.35 permit a private right action. B. Does Bule L35 Provide a Private Right of Action? On its face, § 22 of the CEA provides a private right of action only for violations of “this chapter,” namely, the Act itself. Nothing in the CEA or CFTC rules expressly provides a private right of action under Rule 1.35, or any other CFTC rule. The question this Court must answer, therefore, is whether the statute implies such a right under Rule 1.35. For the reasons discussed below, I conclude that it does. “The starting point in every case involving construction of a statute is the language itself.” Ernst & Ernst v. Hochfelder, 425 U.S. 185, 197, 96 S.Ct. 1375, 1383, 47 L.Ed.2d 668 (1976) (quoting Blue Chip Stamps v. Manor Drug Stores, 421 U.S. 723, 756, 95 S.Ct. 1917, 1935, 44 L.Ed.2d 539 (1975). Here, the enabling statutory provision for Rule 1.35 is § 4g of the CEA, 7 U.S.C. § 6g, entitled, “Reporting and recordkeeping.” Section 4g provides, in relevant part: (a) In general. Every.person registered hereunder as futures commission merchant ... shall make. such reports as are required by the Commission-regarding the transactions and positions of such person, and the transactions- and positions of the customer thereof, in commodities for future delivery on any board of trade in the United States or elsewhere; shall keep books and records pertaining to such transactions and positions in such form and manner and for such period as may be required by .the Commission; and shall keep such books and records open to inspection by any representative of the Commission or the United States Department of Justice. (b) Daily trading records: clearinghouses and contract i markets. Every clearinghouse and contract market shall maintain daily trading records. The daily trading records shall include such information as the Commission shall prescribe by rule. (c) Daily trading records: ... futures commission merchants_[F]utures commission merchants shall maintain daily trading records for each customer in such manner and form as to be identifiable with .the trades referred to in subsection (b) of this section. (d) Daily trading records: forms and reports. Daily, trading records shall be maintained in a form suitable to the Commission for such period as may be required by the Commission. Reports shall be made from the records maintained at such times and at such places and in such form as the Commission may prescribe by rule, order, or regulation in order to protect the public interest and the interest of persons trading in commodity futures. 7 U.S.C. §' 6g(a)-(d). Acting upon § 4g’s directive to “fill in the blanks,” the CFTC promulgated Rule 1.35, setting forth comprehensive, mandatory record-keeping requirements for FCMs, other market members (i.e. floor brokers), contract markets and clearinghouses. Those record-keeping requirements applicable to FCMs are the following: Futures commission merchants ... shall keep full, complete, and systematic records, together with all pertinent data and memoranda, of all transactions relating to its business of dealing in commodity futures ... Included among such records shall be all orders (filled, unfilled, or canceled), trading cards, signature cards, street books, journals, ledges, canceled checks, copies of confirmations, copies of statements of purchase and sale, and all other records, data and memoranda, which have been prepared in the course of its business of dealing in commodity futures _ Rule 1.35(a). Each futures commission merchant ... receiving a customer’s or option customer’s order shall immediately upon receipt thereof prepare a written record of such order, including the account identification and order number, and shall record thereon, by time-stamp or other timing device, the date and time, to the nearest minute, the order is received.... 17 C.F.R. § 1.35(a-l)(l). Each futures commission merchant ... shall, as a minimum requirement, prepare regularly and promptly, and keep systematically and in permanent form, the following: (1) A financial ledger record which will show separately for each customer or option customer all charges against and credits to such customer’s or option customers’ account, including but not limited to customer funds deposited, withdrawn and transferred, and charges or credits resulting from losses or gains on closed transactions; (2) A record of transactions which will show separately for each account (including proprietary accounts): (i) All commodity futures transactions executed for such account, including the date, price, quantity, market, commodity and future; and ... (3) A record or journal which will separately show for each business day complete details of: (i) All commodity futures transactions executed on that day, including the date, price, quantity, market, commodity, future and the person for whom such transaction was made. 17 C.F.R. § 1.35(a-2)(2). Ping He claims that NFM violated each one of Rule 1.35’s requirements of FCMs. Ping He has not asserted a claim, however, under § 4g of the statute. Whether violations of Rule 1.35 permit a private right of action is a question of first impression in this Circuit. Indeed, this Court has found only one decision by any federal court addressing whether an implied private right of action exists under Rule 1.35; that court stated, without referring to Rule 1.35 specifically, that such a right is available. See Woods v. Reno Commodities, Inc., 600 F.Supp. 574, 580 (D.Nev.1984) (stating “[f]ail-ure to maintain adequate records, as required by federal statute and regulations promulgated thereunder, certainly would be actionable if it were proved ... that the failure was the proximate cause of damages to the plaintiff’) (emphasis added). The broader question of whether any of the CFTC rules imply a private right of action has, similarly, been only sparsely addressed by federal courts, with conflicting results. Several courts have broadly held that none of the CFTC rules permit a private cause of action; others, in more narrow holdings, have declined to imply a right of action under particular CFTC rules; and still others have stated that private rights of action do exist under the CFTC rules. See Fustok v. Conticommodity Servs., Inc., 618 F.Supp. 1069 (S.D.N.Y.1985) (no private right of action under Rule 166.3); Bennett v. E.F. Hutton Co., Inc., 597 F.Supp. 1547 (N.D.Oh.1984) (same); Khalid Bin Alwaleed Found. v. E.F. Hutton & Co., Inc., 709 F.Supp. 815, 820 (1989) (broadly holding that none of the CFTC rules permit private rights of action). In re ContiCommodity Servs., Inc., Sec. Litig., 733 F.Supp. 1555, 1568 (N.D.Ill.1990) (same); Procter & Gamble Co. v. Bankers Trust Co., 925 F.Supp. 1270, 1287-88 (S.D.Ch.1996) same); But see Irvine v. Cargill Investor Servs., Inc., 799 F.2d 1461, 1462 n. 3 (11th Cir.1986) (stating, without deciding the issue, “[w]e believe there probably is L ] a [private] cause of action” under the CFTC rules); Point Landing Inc. v. Omni Capital Int’l, Ltd., 795 F.2d 415, 418 n. 4 (5th Cir.1986) (holding that while the plaintiffs’ claims were outside the scope of § 4b of the CEA, their claims “may however be cognizable under ... [CFTC] Regulation 32.9, 17 C.F.R. § 32.9, or under Regulation 30.02, 17 C.F.R. § 30.02.”), aff'd sub nom. Omni Capital Int’l v. Rudolf Wolff and Co., Ltd., 484 U.S. 97, 108 S.Ct. 404, 98 L.Ed.2d 415 (1987); Kleinberg v. Bear Stearns & Co., 1985 WL 1625 (S.D.N.Y.1985) (holding that implied private right of action exists under CFTC Rule 30.02). The Second Circuit has not yet spoken to the issue. Significantly, even the proper methodology for determining whether an implied right of action exists under an agency rule is not settled. While in Cort v. Ash, 422 U.S. 66, 95 S.Ct. 2080, 45 L.Ed.2d 26 (1975), the Supreme Court defined the parameters for assessing whether an implied private right is available under a federal statute, the Court did not consider the availability of such a right under an agency rule. In the absence of any direction to the contrary, many federal courts have simply applied Cort and its progeny in the agency rule context, focusing upon whether Congress intended to provide a private right of action under the rule in question. See e.g., Khalid Bin Alwaleed Found., 709 F.Supp. at 818-820 (applying Cort factors in assessing whether CFTC rules imply private right of action). However, a number of federal appeals courts have held that a different mode of analysis should apply where, as here, Congress clearly provided a right of action under the statute, and the only question is whether that right should likewise extend to the agency rules promulgated thereunder. See Angelastro v. Prudential-Bache Secs., Inc., 764 F.2d 939 (3d Cir.1985); Robertson v. Dean Witter Reynolds, Inc., 749 F.2d 530, 536-37 (9th Cir.1984); Ashbrook v. Block, 917 F.2d 918, 926 (6th Cir.1990); Lowrey v. Texas A & M Univ. System, 117 F.3d 242, 253 n. 20 (5th Cir.1997). In Angelastro, the Third Circuit, concurring with the Ninth Circuit’s analysis in Robertson, declared that “if Congress intended to permit private actions for violations of the statute, it would be anomalous to preclude private parties from suing under the rules that impart meaning to the statute.” 764 F.2d at 947 (quoting Note, Private Causes of Action Under SEC Rule 14e-3, 51 Geo. Wash. L.Rev. 290, 303 (1983)). Accordingly, Angelastro held that once it is determined that a statutory provision expressly or impliedly permits a private right of action, courts should also imply a private right of action under any agency rule promulgated pursuant to that provision, so long as: (1) the agency rule is properly within the scope of the enabling statute, and (2) implying a private right of action will further the purpose of the enabling statute. Id. Unlike a Cort analysis, the focus of the Angelastro inquiry is not on congressional intent. The Third Circuit reasoned that “an inquiry into ‘congressional intent’ underlying an agency rule would not appear appropriate, because a court reaches this point of analysis only after it has already concluded that Congress intended the statute to give rise to private actions.” 764 F.2d at 947. (If the enabling statute provides no private right of action then, clearly, Angelastro provides, there can be no private right of action under the agency rule “since an agency’s rulemaking power cannot exceed the authority granted to it by Congress.” Id.) Accord Robertson, 749 F.2d at 536 (“[I]f the rule in question is valid and furthers the substantive purposes of the enabling statute, and the statute provides a private right of action as a matter of congressional intent, we will imply the private right of action into the rule as well, regardless of agency intent. To do otherwise might constitute an unwarranted frustration of Congress’ desire to supplement agency action with private enforcement.”) Applying this analytical framework in the securities law context, both Angelastro and Robertson found an implied right of action to exist under SEC Rule 10b-16. See Angelas tro, 764 F.2d at 949-50; Robertson, 749 F.2d at 537-39. The Angelastro framework has been endorsed by at least three district courts in this Circuit, and by other federal appeals courts. See Metzner v. D.H. Blair & Co., 689 F.Supp. 262, 267 (S.D.N.Y.1988) (finding implied right of action under SEC Rule 10b-16, based upon “the excellent analysis contained in Angelastro ”); Advanced Magnetics, Inc. v. Bayfront Partners, Inc., 1996 WL 14440, at * 8-9 (S.D.N.Y. Jan.16, 1996) (applying Angelastro framework in holding that implied private right of action exists under SEC Rule 10b-21), aff'd in part, vacated in part 106 F.3d 11 (2d Cir.1997); Graham v. Niagara Mohawk Power Corp., 852 F.Supp. 150, 151 (N.D.N.Y.1994) (applying Angelastro analysis to regulations promulgated under Atomic Energy Act). See also Ashbrook v. Block, 917 F.2d 918, 926 (6th Cir.1990) (applying Angelastro methodology to regulations promulgated pursuant to Consolidated Farm and Rural Development Act); Lowrey v. Texas A & M Univ. System, 117 F.3d 242, 253 n. 20 (5th Cir.1997) (applying Angelastro methodology to Department of Education rule promulgated under Title IX); Corestates Trust Fee Litig. v. Corestates Bank, N.A., 39 F.3d 61, 68 (3d Cir.1994) (applying Angelas-tro analysis to regulations promulgated under National Bank Act). The Second Circuit, however, has yet to endorse the Angelastro methodology, although it has had a few recent opportunities to do so. For instance, in Drake v. Delta Air Lines, Inc., 147 F.3d 169, 170 (2d Cir.1998), the Second Circuit recently upheld the district court’s determination, based upon a traditional Cort analysis, that FAA drug testing regulations do not provide a private right of action. In doing so, the Second Circuit made no mention of Angelastro, and summarily affirmed the decision “for the reasons stated in [the district court’s] thoughtful and detailed opmion[] below.” 147 F.3d 169, 170. Likewise in Cushing v. Moore, 970 F.2d 1103 (2d Cir.1992), the Court adopted the district court’s Cort analysis of whether Food and Drug Administration regulations afford a private right of action, affirming that the regulations do not. Id. at 1106. Again there was no mention of the Angelastro approach. In light of these holdings, it is not clear to this Court whether or not the Second Circuit approves of the Angelastro framework or not. However, I need not reconcile this issue, because, as discussed below, I conclude that Rule 1.35 implies a private right of action whether analyzed under either the Angelastro or Cort framework. First, under the Angelastro approach, there is no question that Rule 1.35 implies a private right of action. The enabling statutory provision in this case, § 4g, plainly allows for private actions by virtue of § 22. Thus, under Angelastro, so long as Rule 1.35 is properly within § 4g’s scope and furthers § 4g’s purpose, an implied private right of action should be found under the rule. Both of these conditions are easily met. Rule 1.35’s mandatory record-keeping requirements are well within Congress’ broad grant of authority to the CFTC, in § 4g, to dictate “the form and manner” of books and records that FCM’s must keep. Furthermore, Rule 1.35 clearly serves § 4g’s purpose of protecting investors by ensuring that “daily trading records for each customer [are maintained] in such manner and form as to be identifiable” 7 U.S.C. § 6g(c). Even under the more stringent Cort framework, there is reason to conclude that Rule 1.35 implies a private right of action. As indicated above, “the ultimate issue” under a 'Cort analysis “is whether Congress intended to create [the] private right of action” asserted by the plaintiff. California v. Sierra Club, 451 U.S. 287, 293, 101 S.Ct. 1775, 1779, 68 L.Ed.2d 101 (1981). Toward that end, the four factors specified in Cort, see supra note 16, are regarded as “criteria through which this intent could be discerned.” Id. at 293, 101 S.Ct. at 1779. The first Cort factor asks whether Ping He, an investor in commodity futures, is a member of the class for whose “especial benefit” the CEA and Rule 1.35 were enacted. See Cort, 422 U.S. at 78, 95 S.Ct. at 2087. The answer is “yes.” As the Supreme Court stated in Curran, “it is almost self-evident that legislation regulating future trading was