Bridging the Week by Gary DeWaal

Bridging the Week by Gary DeWaal: March 16 to 20 and 23, 2015 (Exchange Fined; Algorithmic Traders; Red Flags; China Access)

AML and Bribery    Bridging the Week    China Developments    Compliance Weeds    Customer Protection    Cybersecurity    Exchanges and Clearing Houses    High Frequency Trading    My View    Trade Practices (including Disruptive Trading)    Uncleared Swaps   
Published Date: March 22, 2015


Spring began last week in the northern hemisphere, inciting optimism that warmer and sunnier days soon lie ahead. Optimism also reigned in the futures industry as a result of the publication of proposed rules by the Shanghai International Energy Exchange that heighten the expectation that non-China-based brokers and traders will soon be permitted to directly trade the exchange’s crude oil futures contract. Meanwhile, ICE Futures U.S. was fined US $3 million by the CFTC for allegedly reporting inaccurate trade, price and other information to the Commission for 325 days, and FINRA proposed a new registration category for algorithmic traders’ top developers and supervisors. As a result, the following matters are covered in this week’s Bridging the Week:

  • ICE Futures Fined US $3 Million by CFTC for Reporting Errors and Untimely Response to Inquiries;
  • CFTC Grants Hong Kong Part 30.10 Status (includes Compliance Weeds);
  • BIS/IOSCO Delays Rollout of Margin Requirements for Uncleared Swaps;
  • CFTC Maintains FCM Residual Interest Deadline at 6 PM for Now (includes My View);
  • FINRA Proposes Registration of Broker-Dealers’ Algorithmic Trading Programs’ Principal Developers and Supervisors;
  • US and NYS Settle With BNYM Over Alleged FX Price Quality Misrepresentations;
  • Shanghai International Energy Exchange Releases Proposed Rules to Govern Overseas Traders;
  • FINRA Fines Broker-Dealer for Failing to Act on Red Flags and Prevent Theft by Identity Thief (includes Compliance Weeds);
  • NFA Lightly Slaps FCMs for New Customer Protection Rules Breaches; and more.

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ICE Futures Fined US $3 Million by CFTC for Reporting Errors and Untimely Response to Inquiries

The Commodity Futures Trading Commission fined ICE Futures U.S., Inc. US $3 million last week for filing allegedly inaccurate or incomplete reports related to trading activity, prices and delivery notices from October 2012 to at least May 2014. According to the CFTC, IFUS’s “reporting errors and omissions cumulatively numbered in the thousands” and affected certain data in the exchange’s required reports to the CFTC “for every reporting day” on the 325 reporting days during the relevant time period.

Moreover, claimed the CFTC, during the relevant time period and period of the Division of Enforcement’s investigation into IFUS’s reporting miscues, IFUS “did not respond in a timely and satisfactory manner” to inquiries from Commission staff from various divisions, including enforcement staff, about the data reporting issues. The CFTC acknowledged, however, that ultimately IFUS “did cooperate fully” with the Division of Enforcement’s investigation and fixed the reporting problems.

The CFTC said that IFUS’s reporting errors and omissions arose “primarily” as a result of technology upgrades and data migration projects. The Commission also acknowledged that, although there were problems during the relevant time with reports made by IFUS to the CFTC, there were no problems with data published by IFUS on its website.

Under CFTC rules, a derivatives contract market, like IFUS, is required to submit to the CFTC for each business day certain information in order for the Commission to conduct its routine oversight of markets and participants. According to the Commission, it uses the information provided by DCMs,

to detect and prevent situations that could pose a threat to the markets and to keep the Commission informed of significant market developments. The effectiveness of the Commission's market and financial surveillance programs depends on accurate and timely reporting from DCMs.

The CFTC said it initially notified IFUS of its reporting issues at the beginning of the relevant time period and throughout 2013.

In addition to agreeing to pay the fine to resolve this matter, IFUS consented to the creation and appointment of a new senior position of chief data officer who will be directly responsible for all regulatory reporting. IFUS also agreed to maintain at least three additional quality assurance staff members dedicated to regulatory reporting, and to conduct certain testing to ensure the quality of certain past and future reporting.

IFUS agreed to the settlement of this matter “without admitting or denying the findings and conclusions” in the relevant CFTC order.


  • CFTC Grants Hong Kong Part 30.10 Status [This article is revised following conversation with CFTC staff on March 23, 2015]: The Commodity Futures Trading Commission granted a so-called Part 30.10 exemption last week to the Hong Kong Securities and Futures Commission. Under this exemption, qualified brokers under the oversight of the SFC may apply to carry accounts for United States persons to trade futures products traded on the Hong Kong Futures Exchange Limited only. Although HK’s Part 30.10 relief does not seem to be broad-based based on its plain language, it is intended, according to CFTC staff, to cover all non-US futures and options exchanges and automated trading services under the oversight of the SFC whether located in HK or not (click here for a full list of such execution facilities). To qualify for a specific Part 30.10 exemption, eligible HK-based firms must be authorized and be in good standing with the SFC, consent to jurisdiction in the US by appointing a US agent for service of process, and agree to provide access to their books and records related to transactions with US persons to the CFTC and the US Department of Justice, upon request, among other conditions. Eligible HK firms cannot offer US persons the option of not segregating their funds.

Compliance Weeds: Part 30.10 permits futures brokers located outside the United States who are subject to a comparable regulatory framework in the country where they are located to carry accounts for US persons for certain designated non-US futures and options. In the first instance, Part 30.10 eligibility is negotiated with the CFTC and a local non-US regulator or exchange. Afterwards, local non-US brokers apply to the National Futures Association to obtain specific Part 30.10 status. Part 30.10 exemptions are only as broad, however, as their precise terms. Some permit regulated brokers in a jurisdiction to carry accounts for US persons for products on futures exchanges in that jurisdiction as well as certain other designated non-US futures exchanges (e.g., exemptions granted to regulators in the United Kingdom and Australia; click here for the UK Part 30.10 Exemption and here for the Australia Part 30.10 Exemption.). Other exemptions under Part 30.10 are limited solely to specific exchanges in the broker’s jurisdictions (such as the exemption granted to the Taiwan Futures Exchange which only extends to TAIFEX members trading TAIFEX futures products for US persons; click here for details). Even where an exemption is broad-based, however, it may not permit a local broker to carry in an account for a US person all non-US futures and options. For example, the UK Part 30.10 exemption is limited to futures products traded on certain Financial Conduct Authority-recognized investment exchanges, designated investment exchanges and regulated markets only (click here for a current list of these entities). Although the HK Part 30.10 exemption is narrow, it potentially could be used to allow US persons to access futures traded in China through a potential expansion of the Shanghai-HK Stock Connect to futures. (Click here for an overview of the Shanghai-HK Stock Connect.)

  • BIS/IOSCO Delays Rollout of Margin Requirements for Uncleared Swaps: The Basel Committee on Banking Supervision and the International Organization of Securities Commissions delayed by nine months the initial implementation dates for the mandatory posting of initial and variation margin for uncleared swaps by covered derivatives users. The phase-in period for exchanging initial and variation margin on uncleared swaps will now commence on September 1, 2016 (instead of December 1, 2015) for the largest derivatives users. These are corporate groups whose aggregate month-end average notional amount of non-centrally cleared derivatives exceeds 3 trillion euro. The phase-in period for exchanging initial margin will continue for successively smaller covered entities through September 1, 2020 (instead of December 1, 2019). Smaller uncleared derivatives users will also be required to exchange variation margin commencing March 1, 2017 (instead of beginning December 1, 2015). Five US prudential regulators, including the Board of Governors of the Federal Reserve System, and the Commodity Futures Trading Commission previously proposed initial and variation margin requirements for uncleared swaps that incorporated the prior Basel Committee and IOSCO implementation schedules. (Click here for the article, “FRB and Four Other Federal Agencies Propose Minimum Margin Rules for Uncleared Swaps” in the September 1 to 5 and 8, 2014 edition of Bridging the Week, and here for the article, “CFTC Proposes Margin Rules for Uncleared Swaps and Approves Special Treatment for Operations-Related Swaps With Certain Government-Owned Natural Gas and Electric Utilities” in the September 15 to 19 and 22, 2014 edition of Bridging the Week for more details.) The International Swaps and Derivatives Association applauded the delay in the roll-out of uncleared swaps margin requirements. According to ISDA, "[f]irms have been working hard to prepare for the rules, but the changes would have been all but impossible to complete by the original December 2015 effective date, particularly as final rules have not yet been published by US, European and Japanese authorities."
  • CFTC Maintains FCM Residual Interest Deadline at 6 PM for Now: The Commodity Futures Trading Commission has frozen the current residual interest funding deadline by when, each business day—the so-called “settlement date”—futures commission merchants must post sufficient amounts of their own funds to cover their customers’ aggregate undermargined amounts incurred on the prior day. Without this action, by December 31, 2018, the deadline would have automatically been accelerated from 6 p.m. on each settlement date to the actual time of settlement each morning unless the Commission had proactively amended the earlier deadline by then. The CFTC now commits to having a distinct rulemaking (including the solicitation of public comment) prior to amending the existing residual interest deadline—if at all. In voting for the amended rule, Timothy Massad, chairman of the CFTC, noted that there are arguments both for and against changing the residual interest deadline that the Commission should consider rather than simply let the deadline change automatically. “An earlier deadline can help make sure that FCMs always hold sufficient margin and do not use one customer’s margin to support another customer,” said the chairman. “[B]ut it can also impose costs on customers who must deliver margin sooner.”

My View: Following the collapse of MF Global in October 2011, the CFTC rapidly enacted a number of rules to enhance customer protection. Most quickly, in late 2011, the Commission restricted the investments futures commission merchants could make with customer funds, prohibiting, among other things, purchases of non-US sovereign debt—even though at the time the ability of FCMs to invest in non-US sovereign debt was already prudentially restricted. In part, this action was taken in the belief at the time that MF Global had improperly utilized customer funds to purchase non-US sovereign obligations. However, this appears not to have been the case. As a result, US FCMs are now prohibited from investing customer funds in non-US sovereign debt, even when such investment would more appropriately align the obligations of an FCM currency-wise to its customers. Similarly, a year later, the CFTC enacted the residual interest funding deadline to better ensure that some customers’ funds were not used by an FCM to offset other customers’ undermargined accounts. However, this good-faith effort to protect customers from their FCMs potentially could increase customers’ exposures if FCMs required clients to leave more funds up front to anticipate changing market conditions. Moreover, this measure added to FCMs’ costs. Indeed, a better route may have been for the CFTC to work with Congress to amend the bankruptcy laws to permit individual segregated accounts for customers (as in Europe)—which FCMs could then offer to customers and separately charge for. But this was not the route chosen. It is tough to anticipate unintended consequences; however, effective regulation requires holistic thinking and not just to react and do something for the sake of doing something following a crisis. The CFTC is commended for stepping back somewhat from a 2013 knee-jerk reaction and ameliorating the potential adverse impact of an automatic acceleration of the residual interest deadline.

  • FINRA Proposes Registration of Broker-Dealers’ Algorithmic Trading Programs’ Principal Developers and Supervisors: The Financial Industry Regulatory Authority has proposed to require the registration of personnel at member firms who are principally responsible for the design, development or material amendment of algorithmic trading strategies, or who are responsible for supervising or directing such activity. Such persons would have to register as securities traders, a new category of registration—albeit similar in concept to the current equity trader registration category. FINRA proposes to eliminate the current equity trader registration requirement and require both persons currently deemed equity traders as well as principal algorithmic trading program developers and supervisors to take a newly developed examination (Series 57) and qualify as securities traders. According to the relevant FINRA notice, “robust supervisory procedures, both prior to and after deployment of an algorithmic trading strategy, is a key component in protecting against problematic behavior stemming from algorithmic trading. FINRA believes that an individual qualification and educational requirement … would help improve regulatory compliance.” FINRA claims it is only seeking to register the most senior personnel involved in developing and supervising algorithmic trading programs, and not “junior developers and others who solely write code … at the direction of another.” Comments are due by May 18.
  • US and NYS Settle With BNYM Over Alleged FX Price Quality Misrepresentations: Bank of New York Mellon agreed to pay a total of US $714 million to resolve civil lawsuits and investigations by the United States Attorney for the Southern District of New York, the US Department of Labor, the Securities and Exchange Commission and the New York State Attorney General related to the bank’s alleged misconduct in providing foreign exchange services to its customers from 2000 to 2011. Among other things, as part of the settlement, BNYM admitted that, although it promised its customers best execution and best rates in connection with their FX transactions in connection with the bank’s standing instruction foreign exchange product offering, it in fact gave its clients the worst reported interbank FX rates of the relevant trading day. According to the US Attorney’s stipulation and order of settlement, BNYM never disclosed its actual FX pricing methodology to its custodial clients or their investment managers who utilized the SI product. In addition, as part of its settlement, BNYM agreed to end its employment of David Nichols, the bank’s former manager who helped draft BNYM’s description of best execution and the SI product when he was aware that the description was not accurate. The bank agreed to terminate other employees too and augment client capability to assess the fairness of FX prices they receive. Mr. Nicholas also accepted responsibility for the conduct alleged in the US complaint.
  • Shanghai International Energy Exchange Releases Proposed Rules to Govern Overseas Traders: The Shanghai International Energy Exchange published proposed rules to effectuate the trading of its crude oil futures contracts by foreigners based outside China. This publication follows the release in late December 2014 by the China Securities Regulatory Commission of proposed interim measures to permit foreigners outside China to access China’s futures markets generally. (Click here to see details regarding the interim measures in the article, “China Regulator to Permit Designated Domestic Futures Contracts to be Traded by Foreigners” in a January 23, 2015 Advisory published by Katten Muchin Rosenman LLP.) SIEE’s proposed rules set forth requirements for overseas brokers and traders to apply for SIEE Overseas Special Participant status and access the SIEE directly. Among other requirements, overseas brokers would be required to have net capital of no less than RMB 30 million (approximately US $5 million); be in business for no less than two years; and appoint a contact person in China. Overseas traders would have similar requirements, except their minimum net capital requirement would be RMB 10 million (approximately US $1.6 million) and they would not have to have been in business for at least two years. An overseas broker would have to open an individual trading account for each client with a regulated futures broker in China to clear the transactions (subject to a brokerage agreement with certain required provisions), although customer funds could apparently be maintained on an omnibus basis. An overseas broker could have multiple relationships with regulated futures brokers in China, but could introduce a single overseas trader only to one local broker. Initial margin could be posted in foreign currency, although there is no mention of what currency would be used to settle daily marked to markets gains and losses. Both overseas brokers and overseas traders would be required to advise the SIEE “promptly” if there was an “occurrence of litigation or financial dispute” or they were investigated by a regulator “for suspected violation of laws and regulations,” among other matters. Overseas brokers and traders would be required to retain documents related to their SIEE activities for at least 20 years. Overseas brokers (but not overseas traders) would also have to reside in a country that has entered into a memorandum of understanding on supervisory cooperation with the CSRC. (The CSRC and the Commodity Futures Trading Commission entered into a MOU on January 18, 2002.) Comments are due by April 18, 2015.
  • FINRA Fines Broker-Dealer for Failing to Act on Red Flags and Prevent Theft by Identity Thief: optionsXpress, Inc. (OX), a subsidiary of Charles Schwab Corporation, was fined US $150,000 by the Financial Industry Regulatory Authority for permitting an identity thief to transfer funds using the automated clearinghouse process from a customer’s account when he was unauthorized. According to FINRA, OX failed to have adequate written supervisory policies and procedures to review transfers of funds from customer accounts to outside bank accounts and did not adequately follow up on red flags in connection with transactions that appeared on an internal exception report that identified potentially suspicious conduct. As a result of the unauthorized activity in March and April 2012, the relevant customer sustained losses totaling US $443,000 that the firm ultimately reimbursed. Among the ignored red flags, the identity thief, pretending to be the OX customer, (1) contacted the OX customer service center and was not able to correctly answer security questions; (2) called the OX customer service center using Skype, evidencing a heavy Eastern European accent, and did not appear to understand English, even though the actual customer lived in Illinois; and (3) repeatedly accessed the customer’s account from a Texas IP address (when the customer was living in Illinois) with numerous failed efforts to reset the account security PIN.

Compliance Weeds: If not doing so already, brokers should develop a process to collect in a single location all adverse information on every customer from every source (e.g., exchange requests, exceptions from automated or other surveillance, financial issues), and automatically generate exception reports that identify potentially problematic customers and why. Too often red flags are missed because they litter a company’s offices over disparate locations, and are not collated and reviewed in a systematic manner.

And even more briefly:

  • NFA Lightly Slaps FCMs for New Customer Protection Rules Breaches: JP Morgan Clearing Corp. agreed to pay a fine of US $17,500 to the National Futures Association for failing to instruct its depository—JP Morgan Bank N.A.—to report multiple newly opened customer segregated funds accounts to it as required under NFA rules. NFA detected this oversight during two reviews in January and November 2014. At all times, said NFA, JP Morgan Clearing had sufficient excess segregated funds to meet its customer obligations. Similarly, UBS Financial Services, Inc. agreed to pay an identical fine after it withdrew more than 25 percent of its target residual amount in its customer secured protected funds on two occasions—October 7 and 24, 2014—without obtaining pre-approval of a financial principal and submitting such approval to NFA prior to transferring the funds. NFA said this was also a violation of its rules. The firm maintained in excess of its minimum customer secured amount funds requirements at all times.
  • CME Group Reiterates Prior Lessons Learned in Current Disciplinary Actions: The CME Group re-emphasized prior lessons in two disciplinary actions published last week—that trading should not be done to transfer funds or spoof the market. In one action, the New York Mercantile Exchange and the Commodity Exchange, Inc. fined Daniel Masters in aggregate US $35,000 for engaging in pre-arranged transactions on the Globex platform from August 19 to 22, 2013, to transfer funds from one account to another account he owned. Mr. Masters also agreed to be suspended for 10 business days from trading CME Group products to resolve this matter. Separately, Michael Simonian was fined US $35,000 for engaging in acts detrimental to the interests of the exchange when, on various trade dates between March 2013 and January 2014, he entered large manual orders on one side of the silver futures market to encourage market participants to trade opposite his iceberg orders resting on the other side of the market. As soon as his iceberg orders were hit, Mr. Simonian cancelled his resting large orders—typically within one second. (Iceberg orders on Globex are orders that expose to the market only part of the overall order.) Mr. Simonian also agreed to a 15-day suspension from trading CME Group products to resolve his disciplinary action.
  • ESMA Notes Increased Commonality in Oversight of Automated Trading by EU Regulators: The European Securities and Markets Authority issued the results of a peer review that, it says, demonstrates an increasing alignment in the approaches of the 30 national regulators in the European Union, Iceland, Lichtenstein and Norway to the oversight of trading platforms with large automated trading volume. This is because, says ESMA, the national regulators have all incorporated into their legal framework ESMA’s 2012 guidelines regarding automated trading environments, and all but three into their supervisory framework too. (Click here to access the guidelines.)
  • FINCEN Updates List of Jurisdictions With Deficient AML and Counter-Terrorist Financing Regimes: The Financial Action Task Force of the US Department of Justice has updated its list of jurisdictions with significant anti-money laundering and counter-terrorist financing regimes. Some countries were expressly recognized by FATF for improving their AML and CTF regimes: Albania, Cambodia, Indonesia, Kuwait, Namibia, Nicaragua, Pakistan and Zimbabwe. All but Indonesia were entirely removed from FATF’s AML/CFT deficiencies listing.
  • FCA Bans Former Trader After LIBOR Fraud Conviction: The Financial Conduct Authority has prohibited Paul Robson from performing any function with any entity subject to oversight by it. This is because, said the FCA, Mr. Robson engaged in “deliberate misconduct” when he attempted to manipulate the London interbank offered rate for Japanese yen from May 2006 to early 2011. In August 2014, Mr. Robson pleaded guilty to charges filed by the US Department of Justice related to his alleged wrongful conduct. Mr. Robson previously was employed by Rabobank as a money markets trader.
  • Korea Adopts Business Guidelines for Financial Market Infrastructures: The Financial Services Commission of Korea adopted practical business guidelines to implement the Principles for Financial Market Intermediaries adopted by the Bank of International Settlements and the International Organization of Securities Commissions in April 2012 (click here to access). The business guidelines will apply to the Korea Exchange. Among other things, the Korea Exchange will have to review its “financial resources … necessary to conduct its business stably in extreme but plausible market conditions, and shall periodically review the adequacy of the size of the financial resources” and “shall establish a standard for the use of management and financial resources prefunded to cover credit risk” In December 2013, HanMag Securities Corporation sustained trading losses because of a run-away algorithm and defaulted on its obligation to the Korea Exchange in an amount in excess of KRW 42 billion (approximately US $39.6 million). KRX did not use any of its own resources to cover this default. (Click here for further information on the Han Mag default in the article, “Korean Broker Default Raises Specter of Algorithmic Trades Gone Bad and Broker Liability for Fellow Brokers at Clearing Houses” in the February 17 to 21 and 24, 2014 edition of Bridging the Week.)

And finally:

I am speaking at three upcoming conferences: the FIA's "37th Annual Law and Compliance Division Conference on the Regulatiopn of Futures, Derivatives and OTC Products" in Baltimore, Maryland on April 29 - May 1, 2015 (click here for details); the Managed Futures Association's "Compliance 2015" conference in New York City, NY on May 5, 2015 (click here for details); and the America Conference Institute's  National Advance Summit on "Swaps & Derivatives Global Markets Regulation" in New York City, NY on June 29-30, 2015 (click here for details).

For More Information, See:

BIS/IOSCO Delays Rollout of Margin Requirements for Uncleared Swaps:

Full Text:

See also ISDA statement:​

CFTC Grants Hong Kong Part 30.10 Status:

CFTC Maintains FCM Residual Interest Deadline at 6 PM for Now:

CME Group Reiterates Prior Lessons Learned in Current Disciplinary Actions:

Daniel Masters:
Michael Simonian:

ESMA Notes Increased Commonality in Oversight of Automated Trading by EU Regulators:

FCA Bans Former Trader After LIBOR Fraud Conviction:

FINCEN Updates List of Jurisdictions With Deficient AML and Counter-Terrorist Financing Regimes:

FINRA Fines Broker-Dealer for Failing to Act on Red Flags and Prevent Theft by Identity Thief:

FINRA Proposes Registration of Broker-Dealers’ Algorithmic Trading Programs’ Principal Developers and Supervisors:

ICE Futures Fined US $3 Million by CFTC for Reporting Errors and Untimely Response to Inquiries:

Korea Adopts Business Guidelines for Financial Market Infrastructures:

Available at:

NFA Lightly Slaps FCMs for New Customer Protection Rules Breaches:

JP Morgan Clearing Corp:


Shanghai International Energy Exchange Releases Proposed Rules to Govern Overseas Traders:

US and NYS Settle With BNYM Over Alleged FX Price Quality Misrepresentations:

Joint Press Release:

US Stipulation and Settlement Order:

The information in this article is for informational purposes only and is derived from sources believed to be reliable as of March 21, 2015. 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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