THE GREAT COPPER CAPER: IS MARKET
MANIPULATION REALLY A PROBLEM IN THE
WAKE OF TIE SUMITOMO DEBACLE?
Benjamin E. Kozinn"
In the financial arena, the name of the game is money-make it
now, make it fast, make a lot. To some players in this financial
game, the question of whether to play fairly or unfairly, legally or
illegally, is not debated. Their only issue of concern is how much,
how fast, and what are the chances of being caught.'
INTRODUCTION
As the dust finally settled in the world copper markets in mid-1996,
the events behind one of the "most audacious" financial scandals of all
time began to emerge.2 The debacle resulted from the actions of
Yasuo Hamanaka ("Hamanaka"), formerly the head copper trader
for the Sumitomo Corporation ("Sumitomo"), a worldwide marketer
of copper metal.3 Hamanaka had engaged in approximately ten years
of unauthorized commodity futures trading, allegedly beginning in
1986.1 In his wake, Hamanaka left at least $2.6 billion in losses for
Sumitomo and a tangled web of litigation.6
* The author wishes to thank Stephen J. Obie, Trial Attorney, United States
Commodity Futures Trading Commission, for inspiring this Note as well as for his
friendship and guidance. The author would also like to thank Professor Jill Fisch and
Professor Steve Thel for their insight and expertise.
1. David M. Bovi, Rule 10b-5 Liability for Front-Running: Adding a New
Dimension to the "Money Game", 7 St. Thomas L. Rev. 103, 103 (1994).
2. See Paula Dwyer, Descent Into The Abyss: How the Copper-Trading Affair Engulfed Sumitomo, Bus. Wk., July 1, 1996, at 28 ("The world has witnessed
numerous spectacular financial scandals, from the Ponzi schemes of the 1920s to the
rogue futures trades that capsized Barings PLC. But the Sumitomo Corp. copper- trading scandal is likely to go down in the history books as perhaps the most
audacious yet.").
3. Sumitomo Corporation, founded in 1919, is a Japanese company involved in a
variety of businesses, including the marketing of copper metal. See In re Sumitomo
Corp., [1996-1998 Transfer Binder] Comm. Fut. L Rep. (CCH) 1 27,327, at 46,496
(CFTC May 11, 1998). Sumitomo, through its Copper Metals Section, or Copper
Team, bought and sold physical copper and used futures for "hedging" the risks of
their activity in physical copper. See id.; see also infra notes 65-69 (discussing
hedging).
4. A commodity futures contract is a standardized agreement between the buyer
(the long) and the seller (the short) to purchase or sell a specified quantity and quality
of a commodity, at a specified price, at some point in the future on an organized
FORDHAM LAW REVIEW [Vol. 69
Although Hamanaka effectuated his scheme on the London Metal
Exchange ("LME"), his activity caused price fluctuations that
impacted the copper markets worldwide. As a result, the Commodity
Futures Trading Commission ("CFTC" or "Commission") 7 conducted
an investigation in 1996 into the cause of the substantial price
movements. Ultimately, the CFTC and a group of private individuals
in the United States alleged that Sumitomo had "manipulated" the
price of copper futures in violation of Sections 6(c),s 6(d),9 and
exchange. See 1 Philip McBride Johnson & Thomas Lee Hazen, Commodities
Regulation § 1.03, at 10 (2d ed. 1989) [hereinafter Johnson & Hazen, 2D]. Upon
expiration of the contract the parties may either deliver or accept delivery of the
physical commodity, or they may offset their position (i.e. either long or short) by
purchasing an identical contract opposite to their position and making a cash payment
in order to settle. See infra notes 61-634 and accompanying text.
5. See Cheryl Strauss Einhorn, Sumitomo Settling: Copper-Scandal Deal to
Include Fine, Barron's, May 11, 1998, at 10.
6. See, e.g., In re Sumitomo Corp., [1996-1998 Transfer Binder] Comm. Fut. L.
Rep. (CCH) at 46,501 (describing the settlement between the CFTC and Sumitomo);
In re Sumitomo Copper Litig., 74 F. Supp. 2d 393, 394-96 (S.D.N.Y. 1999) (describing
the settlement between Sumitomo and its co-defendants in the class action brought in
1996).
7. See infra note 34 (discussing the history of the CFTC).
8. See Commodity Exchange Act § 6(c), 7 U.S.C. § 15 (1994). In relevant part, §
6(c) states:
If the [Commodity Futures Trading] Commission has reason to believe that
any person (other than a contract market) is manipulating or attempting to
manipulate... the market price of any commodity, in interstate commerce,
or for future delivery on or subject to the rules of any contract market.... or
otherwise is violating or has violated any of the provisions of this Act or of
the rules, regulations, or orders of the Commission hereunder, it may serve
upon such person a complaint stating its charges in that respect .... Id.
The word "person" is defined in Commodity Exchange Act § la(16): "The term 'person' imports the plural or singular, and includes individuals, associations,
partnerships, corporations, or trusts." 7 U.S.C. § la(16) (1994).
9. See Commodity Exchange Act § 6(d), 7 U.S.C. § 13b. The statute proclaims:
If any person (other than a contract market) is manipulating the market
price of any commodity, in interstate commerce, or for future delivery on or
subject to the rules of any contract market, or otherwise is violating.., any
of the provisions of this Act or of the rules, regulations, or orders of the
Commission thereunder, the Commission may, upon notice and hearing, and
subject to appeal as in other cases provided for in subsection (c), make and
enter an order directing that such person shall cease and desist therefrom
and, if such person thereafter and after the lapse of the period allowed for
appeal of such order or after the affirmance of such order, shall fail or refuse
to obey or comply with such order, such person shall be guilty of a
misdemeanor and, upon conviction thereof, shall be fined not more than the
higher of $100,000 or triple the monetary gain to such person, or imprisoned
for not less than six months nor more than one year .... Id.
It is worth noting that the Commodity Exchange Act not only proscribes
manipulation of a commodity for "future delivery" (i.e. a futures contract), but also
prohibits price manipulation of "any commodity, in interstate commerce" (i.e. the
cash markets for a commodity). Id. Cash markets are the markets where a buyer or
seller can purchase actual quantities of the physical commodity. See Johnson &