Morphing financial products that potentially caused or arguably should have caused the instruments to move from the oversight of one financial regulator to another highlighted non-COVID-19 developments in financial services in the United States during the last two weeks. The Korea Exchange saw its Kospi 200 futures and mini‑futures contracts transform from broad-based security index futures under the sole oversight of the Commodity Futures Trading Commission in the US prior to April 1 to narrow-based security index security futures under the joint oversight of the CFTC and the Securities and Exchange Commission in the US on April 1. Separately, Telegram Group Inc. and TON Issuer Inc. argued in papers filed with a federal court of appeals in New York that “Grams” digital tokens proposed to be distributed in October 2019 to initial purchasers of investment contracts related to the cryptoasset would not have constituted securities, but rather would have been commodities outside the scope of securities laws. The defendants are appealing an adverse decision by a US district court granting the SEC its request for a preliminary injunction precluding the distribution. As a result, the following matters are covered in this special edition of Between Bridges:
KRX took this step in response to a change in the status of the Kospi 200 index from a broad-based to a narrow-based security index as of April 1, thus changing the regulatory oversight of its futures contracts from broad-based non-US security index futures contracts prior to April 1 under the oversight of the Commodity Futures Trading Commission in the US to narrow-based non-US security index security futures contracts under the oversight of the Securities and Exchange Commission and the CFTC in the US as of April 1.
Security futures contracts are both securities and futures contracts under applicable law. They can be based on a narrow-based security index or on an individual security. A security index will be deemed narrow-based if it satisfies any of one of four enumerated tests in an applicable rule, including that the index has nine or fewer component securities; any one component security constitutes more than 30 percent of the index's weighting; or the five highest weighted component securities constitute more than 60 percent of the index's weighting. (Click here to view all four tests at 7 U.S.C. §1a(35)(A).) Generally, a broad-based security index is one that is not narrow-based. (Click here for a CFTC overview of security futures and futures on broad-based security indexes.)
The Kospi 200 index changed status as of April 1 because the weight of a one component stock – Samsung Electronics Co.– exceeded 30% of the weight of the overall index for more than 45 days during the prior three consecutive calendar months.
Whereas broad-based non-US security-index futures contracts are authorized to be traded by all US persons, non-US security-index security futures contracts may only potentially be accessed by (1) certain sophisticated investors known as “qualified institutional buyers” (click here for a definition of QIB under 17 CFR §230.144A(a)(1)); (2) persons who are not US persons as defined under the SEC’s Regulation S (click hereto access 17 CFR § 230.902(k)) and (3) registered broker-dealers (among other enumerated intermediaries) if also registered or noticed registered as a futures commission merchant and effecting transactions for a QIB or non-US person if certain enumerated conditions are satisfied. (Click here to access a relevant 2010 CFTC Division of Clearing and Intermediary Oversight Advisory.) One of the conditions is that closing transactions cannot be executed on an exchange required to be registered with the SEC as a national securities exchange. (Click here to access SEC Release No 34-60194 (June 30, 2009) pgs. 24 -28; see also 15 U.S.C. §78e.)
In suspending access to the Kospi 200 security futures contracts through the CME Globex trading platform, KRX appeared to have had some concerns that its use of Globex potentially implicated national securities exchange registration and/or other SEC requirements.
Separately, a federal district court in New York granted Tower Research Capital LLC et al. summary judgment on its Commodity Exchange Act claims in its effort to dismiss a putative class-action lawsuit filed by five Korea-based traders against it related to its trading of Kospi 200 futures on KRX utilizing the CME Globex trading platform. Plaintiffs had alleged that the defendants manipulated the price of Kospi 200 futures through spoofing practices. (Click here to access CEA §9(1).) The court based its decision on the ground that manipulation of futures contracts is only actionable under US law if the transactions occur on or subject to the rules of a registered entity. The court held that transactions on CME Globex that settled on KRX – a non-registered CFTC exchange – were not transactions on or subject to CME rules, and thus it was irrelevant that CME itself was a designated contract market licensed by the CFTC.
Legal Weeds: In 2013, the SEC issued a report of investigation finding that Eurex Deutschland offered and sold security futures contracts based on the EURO STOXX Banks Index in the US through direct market access, and as a result should have been registered as a national securities exchange or been exempted from registration by it. The SEC also found that Eurex engaged in an unlawful offer and sale of securities in interstate commerce in the US because no registration statement was in effect for the relevant security futures. (Click here to access 15 U.S.C. 77e(a) and (c).)
Previously, CFTC staff authorized Eurex to offer and sell futures on the Banks Index on April 2, 2002, utilizing its terminals in the US in part because the contract was based on a broad-based security index. After September 2011, however, Eurex discovered that the Banks Index had morphed to a narrow-based security index in January 2010 because in excess of 60% of the weight of the overall index comprised the five highest weighted component securities. As a result, after a three-month grace period, the futures transformed from a futures contract solely under the oversight of the CFTC to a security futures contract under the joint oversight of the SEC as a security and the CFTC as a futures contract.
On October 21, 2011, Eurex self-reported to the SEC and CFTC that it had not caught the transition at the relevant time, and that, as a result, from April 2010 through October 2011 it sold six million futures contracts worldwide on the Banks Index through 79 foreign-based intermediaries and direct market terminals in the US. The SEC said that Eurex’s conduct resulted in 120,000 security futures being sold to US persons during the relevant time without compliance with applicable securities laws.
Eurex was solely reprimanded through a public “21A Order” and not otherwise sanctioned for its violations. (Click here to access SEC Release No. 70148 (August 8, 2013).
Eurex also offered and sold mini-Kospi 200 daily futures contracts to US participants prior to March 27, 2020. However, in response to the evolution of the contract from a broad-based to a narrow-based non-US security index contract, it required all US persons to close out all their positions by March 27, while the product was still solely under the jurisdiction of the CFTC. Eurex noted in a press release that, beginning April 1, trading of its mini Kospi 200 daily futures contract would have to be conducted “in accordance with both the U.S. securities and commodity futures laws.” (Click here to access the relevant Eurex press release (March 20, 2020).)
Last year on November 18, the Minneapolis Grain Exchange in conjunction with the Miami International Securities Exchange launched a futures contract on the SPIKES Volatility Index after it self-certified the contract with the CFTC as based on a broad‑based security index. (Click here to access the relevant press release). However, within days of the futures contracts’ launch, MGEX suspended all trading on November 29, “pending final resolution of the product’s classification by the [CFTC] and the [SEC].” MGEX said that “[d]elisting SPIKES Futures allows MGEX sufficient time to work together with the CFTC and SEC to resolve the classification of the product as expeditiously as possible.” (Click here for MGEX December 6, 2019 relevant announcement; click here for additional information on SPIKES Futures.)
Futures based on security indexes can easily change from broad-based (solely under the CFTC’s oversight) to narrow‑based (under joint CFTC and SEC oversight) back to broad-based again (solely under the CFTC’s oversight). The challenge to get it right – and timely doing so – applying the various tests under applicable law is a challenge created by the bifurcated regulation of securities and derivatives in the US by the CFTC and SEC.
After the issuance of the preliminary injunction, defendants also requested the district court to clarify whether the court‘s order only applied to US-based investors in the 2018 securities offering. The defendants argued that the order should only apply to initial domestic investors; otherwise, they claimed, it would result in the impermissible extraterritorial application of US securities laws. The court rejected the defendants’ argument, claiming that it was the overall “scheme” of defendants’ activities – i.e., the initial offering, the proposed distribution of Grams to initial investors and the subsequent redistribution of Grams to the general public – that constituted an illegal security offering without requisite registration, as opposed to any individual component. The court claimed that since the subsequent redistribution of Grams would likely involve US persons, the preliminary injunction could not be limited to initial US investors only.
On appeal, the defendants argue that the district court’s reasoning in granting the preliminary injunction was flawed. It is an incorrect application of relevant case law (click here to access SEC v. WJ Howey) to look at the initial offering of Grams, the subsequent proposed distribution of Grams and the likely later redistribution of Grams as a single, ongoing distribution of securities to the public commencing at the time of the initial offering. There are at least two distinct events, claimed defendants: the initial offering of investment contracts that was conducted pursuant to a lawful exemption from securities registration, and the subsequent distribution of a commodity (i.e., a virtual currency) that was not subject to securities laws. This approach, said defendants, was consistent with prior public statements by SEC Chairman Jay Clayton and William Hinman, Director of the SEC’s Division of Corporation Finance, noting that digital assets could be born as securities but evolve to commodities that are not securities. (Click here for background in the article “SEC Chairman Concurs With Division Head That a Cryptoasset’s Regulatory Classification May Morph Over Time” in the March 17, 2019 edition of Bridging the Week.)
The Blockchain Association filed a friend of the court brief on behalf of defendants echoing defendants’ principal argument. (Click here to access.)
In other legal and regulatory matters involving cryptoassets:
BIS is the principal global standard setter for the prudential regulation of banks.
My View: In its opinion and order denying defendants’ effort to restrict the scope of the preliminary injunction, the district court admonished Telegram Group and TON Issuer for mischaracterizing its reasoning in its initial full decision: it was not the initial offering and Grams that were separate securities, it was the “entire scheme” of the initial offering, the Grams and the likely redistribution to the general public by initial investors that combined were securities.
However, this wordsmithing and practical results are inconsistent with rationale of the SEC v. WJ Howey (see link above). There the court held that it was the initial offering of investment contracts in orange groves that constituted securities (because of the investment in a common enterprise that was expected to achieve profits through the management efforts of others) and not the oranges themselves. The fact that the relevant oranges would likely be sold to and consumed by consumers afterwards was irrelevant.
Here, there are multiple transactions, and each deserves singular attention. The initial offering was admittedly a securities offering; it is why defendants structured their initial sale to US persons as an exempt offering. Although the proposed distribution of Grams in October 2019 would have fulfilled terms of initial purchase agreements that were admittedly securities, at the time of distribution the Grams would themselves have been commodities that were non‑securities if there was a functioning blockchain, and support of the blockchain was decentralized and not dependent on defendants. (Click here to access the “Framework for ‘Investment Contract’ of Digital Assets” by the SECs Strategic Hub for Innovation and Financial Innovation (April 3, 2019).) Any subsequent distribution would be subject to, among other things, anti-fraud authority of the Commodity Futures Trading Commission and not securities laws. (Click here to access Commodity Exchange Act §9(1) and here for CFTC Rule 180.1.)
Like the cryptoasset ether, Grams should not live in the shadow of their initial offering for all time and can morph into non‑securities. This transformation quality of digital assets has been expressly acknowledged by SEC Chairman Clayton and Mr. Hinman, and should have been recognized by the district court. Hopefully the Court of Appeals gets it right.
According to the SEC, during the relevant tine, CFC submitted information related to over 34.5 million transactions, all of which were purportedly problematic. The SEC said the responses contained inaccurate or missing EBS fields pertaining to customer identifying information, contra party, registered representatives, average price account, exchange codes and/or order execution time. The SEC charged that CFC submissions were inaccurate because the firm “lacked processes for validating the accuracy of the information reported in its EBS submissions.”
In resolving its enforcement action against CFC, the SEC acknowledged the firm’s remedial efforts to utilize a regulatory and technology consultant to help it identify and correct its EBS reporting issues, among other actions.
Unrelatedly, CFC also recently agreed to pay US $450,000 to four national securities exchanges to resolve charges that, at various times from March 3, 2015, through January 31, 2019, it failed to implement and maintain risk management controls to preclude entry of erroneous orders by the firm’s exchange-traded funds desk as required under the SEC’s market access rule. (Click here to access SEC Rule 240.15c3-5.) The four exchanges were NASDAQ Stock Market, NYSE ARCA, Cboe BZX and EDGX exchanges.
Compliance Weeds: Under an SEC rule, broker-dealers must submit to the SEC upon request true and complete copies of trading records they are required by law to make and keep. Another SEC rule requires broker-dealers to submit such securities transactions records to the SEC electronically upon request. (Click here to access SEC Rule 17a-4(j) and here for SEC Rule 17a-25. Click here to access Securities Exchange Act § 17(a)(1), 15 U.S.C. § 78q(a)(1).)
Over the years, the SEC has aggressively prosecuted broker‑dealers that failed to timely file, or filed inaccurate, EBS responses.
For example, in September 2019, two broker-dealers – Stifel, Nicolaus & Co. and BMO Capital Markets Corp. – settled allegations made by the SEC that they failed to provide securities trading information or provided inaccurate data in response to EBS requests by the Commission for prolonged periods of time.
According to the SEC, from approximately January 1, 2015, through September 30, 2018, Stifel reported only 8 million transactions of 17.8 million requested, and of the transactions it did report, 1.4 million contained inaccurate data. The SEC claimed that Stifel incurred errors because it did not have “adequate processes” to verify that information it was reporting was accurate. Stifel agreed to pay the SEC US $2.7 million to resolve the agency’s charges. In agreeing to this amount, the SEC acknowledged the firm’s remediation efforts, which began prior to the SEC contacting Stifel.
Similarly, the SEC alleged that BMO, from approximately January 6, 2014, through August 13, 2018, made 4,074 submissions containing data for 5.4 million transactions – all of which were deficient in one or more ways. BMO agreed to pay US $1.95 million to resolve the SEC’s allegations. The SEC also acknowledged BMO’s remedial efforts in accepting the firm’s settlement.
Late in 2018, the SEC also fined three other broker-dealers in excess of US $6 million for their failure to submit accurate blue sheet data records as a result of undetected coding errors. (Click here for details in the article “Undetected Coding Errors Lead to More Than US $6 Million in SEC Fines for Three Broker-Dealers for Blue Sheet Reporting Violations” in the December 16, 2018 edition of Bridging the Week.)
Relevant entities that may be required to respond to EBS requests should periodically review submissions against source information to ensure their systems are properly capturing and processing trade data correctly.
As a result, Yue Wang was assessed an aggregate fine of $60,000 for his alleged offenses while each of Xiang Hu, Ya Qi Zhang and Er Wei Zhao were assessed aggregate fines of US $40,000. All four persons were permanently barred from accessing CME Group exchanges directly or indirectly.
For full coverage of COVID-19 regulator actions by principal US regulators, the Financial Conduct Authority and the European Securities and Markets Authority, as well as other worldwide authorities, click here to access a comprehensive Katten resource page organized by financial regulator, as well as business type.
The following items are regulatory actions that may have fallen under the radar:
Separately the SEC’s Office of Compliance Inspections and Examinations issued advisories regarding the scope of content of initial examinations after the compliance dates for both Reg BI and Form CRS. OCIE’s examinations will focus on whether firms have made a “good faith effort” to implement Form CRS and whether they have established and put in place policies and procedures reasonably designed to ensure compliance with Reg BI. The Financial Industry Regulatory Authority indicated in a separate statement that it would take the same approach regarding Reg BI and Form CRS when it also examines broker-dealers and their associated persons after June 30.
For further information:
Broker-Dealer Fined $3.2 Million for Purported Incomplete and Inaccurate Special Reports of Trading Information to SEC Over Five Years:
CME Group Exchanges Sanction Traders for Alleged Prearranged Trades to Transfer Positions and Not Participating in Disciplinary Proceedings:
Eleven Putative Class Action Lawsuits Filed Against Execution Platforms and Issuers for Purported Illicit ICOs:
Regulators Warn, Give and Maintain the Status Quo in Response to Pandemic:
Tomorrow, Tomorrow and Tomorrow – An Appeals Court May Determine When a Digital Token Offered in a Security Offering Creeps Into a Virtual Currency:
Yesterday, Kospi 200 Narrow-Based Security Index Security Futures Contracts Seemed So Far Away:
The information in this article is for informational purposes only and is derived from sources believed to be reliable as of April 11, 2020. 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. Views of the author may not necessarily reflect views of Katten Muchin or any of its partners or employees.