Fed. Sec. L. Rep. P 95,451 Michael S. Wasnick Marcy Wasnick Chief Construction Company, Cross-Appellants v. Refco, Inc., Cross-Appellee

The memorandum disposition filed February 14, 1990, 896 F.2d 556 , is redesignat-ed as an authored opinion by Judge Nelson.

OPINION

Plaintiffs-appellees and cross-appellants Michael S. Wasnick, his wife, Marcy Was-nick and his company Chief Construction Co. (Wasnick) sued defendant-appellant and cross-appellee Refco, Inc. (Refco) for Mi chael Wasnick’s losses in commodity trading as a client of Refco and ContiCommodity Services (Conti) which was purchased by Refco. Refco is a commodity brokerage firm. Wasnick alleges that he was unsuitable to trade and Refco should have warned him or prevented him from trading. The case involved two claims, one under section 4b of the Commodity Exchange Act (CEA) and one for negligence under common law. After a bench trial, the district court found that Refco’s actions did not reach the level of fraud under section 4b. The court did find that Refco was negligent and awarded damages to the plaintiff on this claim. It refused to toll the statute of limitations and so limited damages to post 1984. It also found that Refco had only assumed Conti’s liabilities post 1984.

We have jurisdiction under 28 U.S.C. section 1291 . We affirm the dismissal of…