2000]COMMODITY FUTURES MARKET MANIPULATION 269
In response to this flaw, another commentator, Professor Friedman,
modified Perdue's method.2 "
1 He proposed that a judicial body ask
two questions. First, the judicial body should query "what the long
[trader] would have done if he simply did not take the anticipated
impact into account," and second, "what the long would have done
had he put out of mind the additional pressure created by a system of
punitive sanctions for default. 21 3 Put differently, Professor Friedman
advocates that an adjudicative body should inquire whether a person
would have acted similarly "if some aspect of reality were altered or
disregarded. ' " 214 Although his approach seeks to determine the root of
a market power manipulation charge, it also suffers from the same
intent-based flaws present in Professor Perdue's formulation.2
Unlike Perdue's approach, however, Professor Friedman does not
discount the use of price distortions.1 6 Nevertheless, his method still
remains weak because of the tremendous confusion currently
surrounding the concept of price artificiality.21
t
Perhaps the approach offered by Professor Stephen Craig Pirrong is
best suited to tackle the manipulation dilemma. Although the
Commission in Indiana Farm Bureau rejected the use of historical
prices as a means of determining price artificiality,1 8 Professor
Pirrong clearly believes in the use of such information.2 1 9 He proposes "utilizing historical data and universally accepted statistical
hypothesis-testing techniques."' Although his approach may be the
most accurate from an ex post standpoint, his proposal is unnecessary
because the current statutory and regulatory requirements prevent
market participants from effectuating unfavorable manipulative
schemes. 2
Finally, Professor Jerry Markham described manipulation as the "unprosecutable crime.' '
m In accordance with his position that
prosecuting manipulation cases is virtually impossible,m he argues
both for amending manipulation law, in order to clarify the
211. See Friedman, supra note 25, at 38.
212 See id. at 58-59.
213. Id. at 59. The second question with regard to Professor Friedman's proposal focuses on the draconian sanctions that shorts must pay if they default on a contract.
See supra text accompanying note 104.
214. Freidman, supra note 25, at 59.
215. See supra notes 207-10 and accompanying text.
216. See Friedman, supra note 25, at 54-57.
217. See supra notes 135-54 and accompanying text; see also Pirrong, Critical
Analysis, supra note 25, at 991 (claiming that because the use of historical prices was
discredited by the CFTC in Indiana Farm Bureau, Professor Freidman's formula will
not work without "rehabilitation of the price artificiality doctrine").
218. See supra note 217 and accompanying text.
219. See Pirrong, Critical Analysis, supra note 35, at 995.
220. Id.
221. See infra Part lII.B.1.
222. Markham, Unprosecutable Crime, supra note 25, at 281.
223. See id. at 357.
FORDHAM LAW REVIEW
ambiguities, and for a more affirmative regulatory role for the CFTC.
He contends that the four-part test z4 that the Commission is required
to prove is a "daunting, indeed impossible, task for the CFTC staff."
Professor Markham criticized commentators who attempt to solve the
manipulation puzzle by simply searching for a more workable
definition. 6 His solution calls for more affirmative measures by the
CFrC.17 He proposes increased daily surveillance by the CFTC over
the life of a contract, and furthermore, he desires more careful
oversight of the cash markets as well.u29
II. THE SUMITOMO SCANDAL
Even in the midst of the confusion surrounding the concept of
manipulation, the Commission in In re Sumitomo Corp.,"0 articulated
the aforementioned23' four-part analysis and determined that
Sumitomo successfully completed a long market power manipulation
in violation of the CEA.P2 Part II of this Note seeks to decipher the
events of Sumitomo's manipulation, one of the most elaborate
manipulation schemes in the history of commodities trading. This
part will examine the Sumitomo scandal as an example of market
power manipulation, particularly in the context of whether
manipulation is truly a problem. Although Hamanaka's actions
adversely affected the market, the outlandish nature of the case made
it an anomaly rather than evidence of an unchecked problem.
In June 1996, the headline to an article in the Wall Street Journal
Europe edition announced, "Copper Prices Plummet in London on
Tremors from Sumitomo Fiasco.' '
u3 Finally, the world began to
witness the fallout of Yasuo Hamanaka's decade-long scheme to
224. See supra text accompanying note 129.
225. Markham, Unprosecutable Crime, supra note 25, at 357.
226. See id. at 358-61.
227. See id. at 363 ("[T]he CFTC must play a much more affirmative role in the
market place. It must simplify prosecutions, and its goal must be to assure a 'fair and
orderly' market.").
228. See id. at 365.
229. See id. at 365-66.
230. The full title of the order reads, "Order Instituting Proceedings Pursuant to
Sections 6(c) and 6(d) of the Commodity Exchange Act and Findings and Order
Imposing Remedial Sanctions." See In re Sumitomo Corp., [1996-1998 Transfer
Binder] Comm. Fut. L. Rep. (CCH) 27,327, at 46,496 (CFTC May 11, 1998)
[hereinafter Order Imposing Remedial Sanctions]. Importantly, none of the factual
findings in the CFTC's order were adjudicated. Sumitomo stipulated to all alleged
facts in the order pursuant to its settlement. See id. The same problem holds true for
the many factual findings in the Merrill Lynch settlement. See In re Global Minerals
& Metals Corp., [1998-1999 Transfer Binder] Comm. Fut. L. Rep. (CCH) 1 27,686, at
48,248 (CFTC May 20, 1999).
231. See supra note 129 and accompanying text.
232- See supra notes 8-10.
233. Copper Prices Plummet in London on Tremors from Sumitomo Fiasco, Wall
St. J. Eur., June 25, 1996, at 21.