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Bridging the Week by Gary DeWaal: February 6 to 10 and February 13, 2017 (Retail FX Dealer to Close; Top Five IA Compliance Topics; Disaggregation; CPO Delegation)

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Published Date: February 12, 2017

A renowned retail foreign exchange dealer agreed to shut its doors as a result of enforcement actions taken by the Commodity Futures Trading Commission and the National Futures Association, while the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations provided a top five list of issues it has seen during investment adviser inspections. Although some of OCIE’s identified topics are likely of interest only to investment advisers, most of its observations regarding compliance procedures are relevant to all SEC and CFTC registrants and supporting practitioners. As a result, the following matters are covered in this week’s edition of Bridging the Week:

Also, this week, in light of the apparent impending nomination of J. Christopher Giancarlo as the next Chairman of the Commodity Futures Trading Commission, I will commence sporadically re-publishing prior articles from Bridging the Week that give some insight into what may constitute his priorities for the Commission going forward, in a new segment Memory Lane. This week, the article re-published is from February 1, 2015, and entitled, "CFTC Commissioner Laments Flawed US Swaps Trading Model (includes My View)."

Because of the Presidents’ Day Holiday in the US on February 20, the next edition of Bridging the Week will be February 27.

Video Version:

Article Version:

Retail Foreign Exchange Dealer Agrees With CFTC and NFA to Cease Doing Business for Concealing Relationship With Closely Tied Market Maker

Forex Capital Markets, LLC, a retail foreign exchange dealer, and two of its principals – Dror Niv and William Ahdout – agreed to terminate their business to settle charges by the Commodity Futures Trading Commission that, from April 2010 through 2014, the firm misled customers when it had an interest in a market maker that often traded opposite FXCM’s customers while advising them that the firm executed transactions solely on an agency basis. The defendants consented to withdraw from registration with the CFTC and to pay a fine of US $7 million.

Contemporaneously, FXCM, the same two principals and Ornit Niv, currently the chief executive officer of FXCM and sister of Dror Niv, resolved charges brought by the National Futures Association based on the same basic facts by also agreeing to withdraw as members of NFA. (Dror Niv was CEO of FXCM from 2001 through 2014.)

Under the CFTC’s settlement order, the defendants agreed to withdraw their registration by March 8; while under the NFA’s settlement order, the respondents agreed to withdraw their registration by February 21.

According to both regulators, beginning in 2007, FXCM held itself out to the majority of its customers as using an agency model of trading, which it described as “No Dealing Desk” forex trading. However, alleged the CFTC and NFA, beginning in May 2010, FXCM began routing customer trades to Effex Capital LLC, which traded opposite FXCM’s customers; was headed by a former FXCM managing director; and paid FXCM approximately 70 percent of its trading profits in exchange for FXCM customer order flow. FXCM had provided Effex a US $2 million loan to begin its operations and permitted Effex to use a trading algorithm that was its intellectual property, alleged the CFTC. Moreover, claimed the NFA, “FXCM allowed Effex to engage in abusive execution tactics, which denied FXCM’s retail customers favorable price improvement and benefitted Effex and FXCM financially.”

In 2011, both the CFTC and the NFA imposed fines against FXCM of US $8 million combined for disadvantaging its customers in trade executions. In 2014, the UK Financial Conduct Authority fined FXCM affiliates' Forex Capital Markets Ltd and FXCM Securities Ltd. UK £4 million (US $6.7 million) for the same essential offense. (Click here for background on these earlier sanctions in the article “UK FCA Fines Forex Dealer for Not Forwarding Trading Profits to Customers and Not Informing it about a Pending CFTC and NFA Investigation and Fine” in the March 3, 2014 edition of Bridging the Week.)

Following the unexpected decoupling of the Swiss Franc and the Euro exchange rate by the Swiss National Bank in January 2015, FXCM received a US $300 million infusion from Leucadia National Corporation “to meet its regulatory-capital requirements and continue normal operations” after losing US $225 million. (Click here for details in the article “Swiss Franc-Euro Decoupling Spurs Worldwide Legal and Regulatory Fallout” in the January 25, 2015 edition of Bridging the Week.)

Briefly:

Legal Weeds: Within the last two years, the SEC has on multiple occasions brought charges against the compliance officer of an investment adviser for its failure to adhere to its compliance rule requirements. This is despite the express language in the relevant rule that states that if you are an investment adviser (not the CCO of an IA) you must “adopt and implement written policies and procedures to prevent violation by you and your supervised persons” of applicable law (emphasis added). In one action involving the alleged misappropriation of customer funds by the president of an IA, the SEC charged the compliance officer with causing the firm not to have adequate policies and procedures reasonably designed to detect the theft. (Click here for background, in the article “Investment Adviser Chief Compliance Officer Blamed in SEC Lawsuit for President’s Theft of Client Funds; SEC Commissioner Criticizes Enforcement Actions Against CCOs Generally” in the June 21, 2015 edition of Bridging the Week.) Earlier, the SEC similarly charged the chief compliance officer of BlackRock Advisors LLC for the firm’s failure to have compliance procedures that addressed the outside activities of employees and how such activities should be assessed for conflict purposes, and when such activities should have been disclosed to BlackRock’s board of directors or its advisory clients (click here to access the relevant SEC enforcement order). These actions confused the role of compliance officers and business supervisors and misguidedly placed on compliance officers untenable obligations and potential liability. Hopefully, the SEC under new leadership will not follow a similarly mistaken approach.

Compliance Weeds: Too often registrants adopt cookie-cutter policies and procedures manuals that are overly generic and mostly parrot regulatory requirements without meaningfully reflecting how the firm will actually comply with such obligations. Moreover, policies and procedures, once adopted, sometimes become company heirlooms that mostly gather dust on a shelf and are rarely consulted, let alone updated. Policies and procedures that are adopted to comply with regulatory requirements must be reasonably designed to address the relevant subject matter, should reflect the firm’s actual practices, and should be continually updated to reflect current practices and personnel. Moreover, before implementation and periodically afterwards, policies and procedures should be assessed holistically – ideally by non-drafters – to evaluate their completeness and effectiveness, and to recommend enhancements for improvement.

Compliance Weeds: A bylaw of the National Futures Association makes it an offense for a member to conduct business with a non-member that is required to be registered with the CFTC, but is not (click here to access NFA Bylaw 1101), As a result, NFA members must have procedures to reasonably ensure they do not engage in business with unauthorized persons, including reviewing NFA’s BASIC system to confirm that an entity is registered or lawfully exempt. However, NFA members must be mindful that registration-exempt CPOs and commodity trading advisers have until March 1 of each year to file with the NFA an annual affirmation regarding their exemption. As a result, such persons’ status may be uncertain for a brief time at the beginning of each year. The NFA has made clear, however, that members that take reasonable steps to assess the registration and membership status of previously validly exempt persons will not be deemed to be in violation of the relevant NFA bylaw if between January 1 and March 31, they transact customer business with a previously exempt person that fails to become registered with the CFTC when it should, or fails to file a valid notice of exemption. (Click here for additional information in the article “NFA Members Warned to Apply Caution When Dealing With Exempt CTAs and CPOs” in the January 16, 2017 edition of Bridging the Week.)

Compliance Weeds: The CFTC’s no action letter does not impact separate exchange rules related to IAC, owned-entity or other disaggregation exemptions that may already require the filing of a specific request. (Click here to access, e.g., CME Group Rule 559.E — “Any person claiming an exemption from position limits under this Section must file a written request in the form specified by the Market Regulation Department, providing details of the request.” At ICE Futures U.S., only a person seeking an owned entity disaggregation exemption must file a formal request – not an IAC exemption; click here to access ICE Futures Rule 6.12(c).)

My View: The CFTC has long taken an expansive view of the definition of commodity pool operator and who must be registered with it as a CPO. Under the relevant statute, a CPO is “any person engaged in a business that is of the nature of a commodity pool, investment trust, syndicate, or similar form of enterprise, and who, in connection therewith, solicits, accepts, or receives from others, funds, securities, or property, either directly or through capital contributions, the sale of stock or other forms of securities, or otherwise,” to trade commodity interest contracts – like futures and related options – regulated by the agency. (Click here to access Commodity Exchange Act, § 1(a)(11).) Although the CFTC has through regulation or otherwise routinely exempted certain persons from CPO registration requirements, the CFTC begins its analysis by applying its broad view. Thus, for example, in connection with overseas-organized funds organized as corporations, the CFTC takes the view that all directors are CPOs even if under company charter or otherwise, not all directors – particularly non-affiliated directors – have investment management authority of any kind. (Click here to access CFTC NAL 14-69; see fn. 9.) Although the CFTC has provided a welcome mechanism for delegation of such presumed investment management authority in such circumstances, it is premised on a false presumption and a too broad reading of the relevant statute. Hopefully the CFTC can re-examine its historical views under its new leadership.

And more briefly:

Memory Lane:

From the February 1, 2015 edition of Bridging the Week:

CFTC Commissioner Laments Flawed US Swaps Trading Model

J. Christopher Giancarlo, the newest commissioner of the Commodity Futures Trading Commission, published a white paper that severely criticized the Commission’s swaps trading rules and proposed an alternative framework that he claimed more accurately reflected congressional intent.

When Congress enacted the Dodd-Frank Wall Street Reform and Consumer Protection Act in 2010, it did not prescribe specific execution methods for cleared swaps, says Mr. Giancarlo. Instead, it “expressly permitted [swap execution facilities] to offer various flexible execution methods for swaps transactions using ‘any means of interstate commerce’.”

Subsequently enacted CFTC rules, which dictate that swaps be executed solely through a central order book (CLOB) or a request for quote (RFQ), are therefore not mandated by statute, claims the commissioner, and are inconsistent with the fundamental nature of swaps as opposed to futures. As a result, says Mr. Giancarlo,

[t]here is a fundamental mismatch between the CFTC’s swaps trading regulatory framework and the distinct liquidity, trading and market structure characteristics of the global swaps markets. This misalignment was caused by inappropriately applying to global swaps trading a U.S.-centric futures regulatory model that supplants human discretion with overly complex and highly prescriptive rules in contravention of congressional intent. This mismatch—and the application of this framework worldwide—has caused numerous harms, foremost of which is driving global market participants away from transacting with entities subject to CFTC swaps regulation, resulting in fragmented global swaps markets.

Mr. Giancarlo claims that the distinction between futures and swaps derives from the different characteristics of the products. Futures, he claims, are “relatively fungible products with standardized terms and conditions ... and uniform trading and credit procedures.” Swaps, says Mr. Giancarlo, are far less fungible, and range from very customized instruments with long maturities to more standardized products with shorter maturities.

Swaps tend to trade episodically, while futures tend to trade more continuously, says Mr. Giancarlo. Because a futures contract tends to be the exclusive property of a specific exchange, the exchange generally handles all aspects of trading—from data reporting, trade confirmation and settlement. This is not the case with swaps, where a contract design is not owned by any particular exchange and swaps markets are served by a host of independent third parties who provide trade data reporting, affirmation and confirmation services, says the commissioner.

By limiting swaps that must be traded on a designated contract market or a swap execution facility to be traded solely through CLOB or RFQ functionality, the CFTC ignores fundamental differences between futures and swaps. According to Mr. Giancarlo,

[b]y requiring SEFs to offer Order Books for all swaps, even very illiquid or bespoke swaps, the rules embody the unsophisticated and parochial view that centralized order-driven markets, like those in the U.S. futures markets, are the best way to execute swaps transactions. That flawed view is not reflective of global swaps market reality.

Mr. Giancarlo recommends that, instead of continuing with overly proscriptive regulation governing SEF trading rules, the CFTC should encourage flexibility consistent with the congressional mandate. He advocates vehemently that trade execution methods should be permitted to evolve “organically based on technological innovation, customer demand and quality of service.” He also suggests that professionals involved in swaps markets should be required to demonstrate qualification similar to professionals in the securities and futures industries (e.g., by passing required examinations).

Mr. Giancarlo claims that adoption of his vision for the regulation of swaps trading “will achieve Congress’s express goals of promoting swaps trading and market transparency in a well-conceived regulatory framework without exacerbating systemic risk and market fragility.”

My View: Although I tend to agree with most of Mr. Giancarlo’s recommendations (and am still thinking about the others), my path for getting there is slightly different. To me, it is not that all swaps behave one way and all futures another that they should be regulated differently—it is because some swaps are much less liquid than many futures. However, many delivery months of futures are equally illiquid as are many strike prices of options. Regulators, particularly in the United States—because of artificial divisions created by law—, have gotten it wrong when they base regulation on the name of the product they are overseeing rather than on its characteristics. It is simply not relevant whether a financial product is called a futures contract, a security or a swap. What is relevant is solely (1) whether a financial product is sold for future settlement (where payment now represents a partial down payment to ensure performance later), (2) how distant in the future is the settlement scheduled, and (3) if a financial product that is sold is settled today, can the product be purchased on leverage and, if yes, for how much and what are the conditions? Moreover, at any time, how liquid is the financial product today and over time? Viewing the characteristics of products rather than their names would permit regulators to develop more appropriate trading and business conduct rules. It certainly would avoid scenarios where cleared swaps can be transformed over a weekend to cleared futures, options can be regulated both as securities and futures, and highly correlated but differently named financial products can have different regulatory and tax treatments. Congratulations to Mr. Giancarlo for an exceptionally thoughtful think piece!

For more information, see:

CFTC Commissioner Laments Flawed US Swaps Trading Model:
http://www.cftc.gov/idc/groups/public/@newsroom/documents/file/sefwhitepaper012915.pdf

CFTC Staff Grants Six-Month Delay for Firms to File Mandatory Disaggregation Notices:
http://www.cftc.gov/idc/groups/public/@lrlettergeneral/documents/letter/17-06.pdf

CME Group Member’s Summary Suspension Ended:
http://www.cmegroup.com/notices/disciplinary/2017/02/NYMEX-16-0600-ELDORADO-TRADING-GROUP-LLC.html

CPO and Owner Sanctioned by CFTC for Violations of Law and Rules:
http://www.cftc.gov/idc/groups/public/@lrenforcementactions/documents/legalpleading/enfodencapitalorder020917.pdf

Financial Stability Board Makes 14 Recommendations to Mitigate “Structural Vulnerabilities” of Asset Management:
http://www.fsb.org/wp-content/uploads/FSB-Policy-Recommendations-on-Asset-Management-Structural-Vulnerabilities.pdf

HK Regulator Sanctions Retail FX Dealer for Not Disclosing Slippage Handling Procedures That Harmed Investors:
http://www.sfc.hk/edistributionWeb/gateway/EN/news-and-announcements/news/openAppendix?refNo=17PR19&appendix=0

IOSCO Publishes State of FinTech Overview:
http://www.iosco.org/news/pdf/IOSCONEWS451.pdf

No-Action Relief Regarding CPO Delegations Penned by CFTC’s Division of Swap Dealer and Intermediary Oversight:

Representative NALs:

Retail Foreign Exchange Dealer Agrees with CFTC and NFA to Cease Doing Business for Concealing Relationship with Closely Tied Market Maker:

SEC OCIE Provides Top Five List of Most-Identified Compliance Topics During Investment Adviser Examinations:
https://www.sec.gov/ocie/announcement/risk-alert-five-most-frequent-ia-compliance-topics.html

Senate Agriculture and Judiciary Committees Chairmen Raise Concerns Regarding CFTC Handling of Whistleblowers:
http://www.agriculture.senate.gov/imo/media/doc/02-06-17%20CFTC%20IT%20Security%20Letter.pdf

The information in this article is for informational purposes only and is derived from sources believed to be reliable as of February 11, 2017. No representation or warranty is made regarding the accuracy of any statement or information in this article. Also, the information in this article is not intended as a substitute for legal counsel, and is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The impact of the law for any particular situation depends on a variety of factors; therefore, readers of this article should not act upon any information in the article without seeking professional legal counsel. Katten Muchin Rosenman LLP may represent one or more entities mentioned in this article. Quotations attributable to speeches are from published remarks and may not reflect statements actually made.

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Gary DeWaal

Gary DeWaal is currently Special Counsel with Katten Muchin Rosenman LLP in its New York office focusing on financial services regulatory matters. He provides advisory services and assists with investigations and litigation.


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