Bridging the Week by Gary DeWaal


Bridging the Week by Gary DeWaal: October 19 to 23 and 26, 2015 (Automated Trading Controls; Too Much Regulation; Spoofing; Evasion; Customer Funds Investments)

AML and Bribery    Bridging the Week    Compliance Weeds    Customer Protection    Cybersecurity    High Frequency Trading    Legal Weeds    My View    Systems and Controls    Trade Practices (including Disruptive Trading)    Uncleared Swaps   
Published Date: October 25, 2015

Last week, two leaders of major regulatory agencies in the United Kingdom and the United States expressed concerns about at least some aspects of the post 2007-2008 financial services regulatory environment, while prudential regulators began rolling out a final rule on margin requirements for uncleared swaps. As a result, the following matters are covered in this week’s edition of Bridging the Week:

  • Proposed Automated Trading Rule by CFTC Likely to Follow Already Existing Best Practices; SEC Also Contemplating New Measures;
  • OCC and FDIC Approve Final Margin Rule for Uncleared Swaps; Other Prudential Regulators Expected to Follow;
  • UK FCA’s Acting CEO Says Current Intensity of Regulatory Activity Is Not Sustainable (includes My View);
  • CFTC Enforcement Action Introduces New Theory of Spoofing (includes Legal Weeds);
  • International Bank Sanctioned by Multiple US Regulators for Allegedly Helping Clients Evade US Financial Sanctions;
  • FCM Penalized for Allegedly Exceeding Concentration Limits for Investment of Customer Funds in Money Market Products (includes Compliance Weeds);
  • Two Affiliated Advisory Firms Sanctioned for Not Disclosing Change in Fund’s Investment Strategy; and more.

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Proposed Automated Trading Rule by CFTC Likely to Follow Already Existing Best Practices; SEC Also Contemplating New Measures

In two speeches last week, Timothy Massad, Chairman of the Commodity Futures Trading Commission, said the agency is currently considering proposals to mandate various pre-trade risk controls for automated trading as well as requiring registration for proprietary trading firms that are not already registered with the Commission.

The speeches were delivered on October 21 before the Conference on the Evolving Structure of the US Treasury Market hosted by the New York Federal Reserve Bank and on October 22 before the Risk USA Conference in New York.

According to Mr. Massad, the proposals related to pre-trade risk controls would apply to firms engaged in automated trading whether the trading was “high or low-frequency.” The CFTC would not attempt to prescribe the parameters for risk controls but solely require utilization of certain types of measures that mostly will be “consistent with the best practices followed by many firms already,” noted Mr. Massad.

Among the types of pre-trade risk controls being considered by the Commission are message throttles and maximum order size limits, said Mr. Massad. He also indicated the Commission is considering requirements related to the “design, testing and supervision of automated trading systems” as well as measures to limit unintentional self-trading.

Mr. Massad did not provide an expected date for any proposed rules and, in fact, emphasized that “the Commission has not yet decided to issue any proposals.”

At the conference hosted by the NY Fed, Mary Jo White, Chair of the Securities and Exchange Commission, said that the SEC is likewise considering new proposals to (1) strengthen risk controls for firms using trading algorithms; (2) develop standards dealing with “the use of aggressive, destabilizing trading strategies by active proprietary traders in vulnerable market conditions;” (3) require registration for certain active proprietary trading firms that are not currently required to be SEC-registered; and (4) increase the operational transparency of non-exchange trading venues.

Mr. Massad, in his speech before Risk USA, also lamented regarding the failure of European regulators to date to recognize US clearinghouses as subject to equivalent regulation as European clearinghouses, and of banking regulators to permit banks to consider client collateral posted at clearinghouses in connection with their cleared derivatives as an offset against the banks’ exposure there for the purpose of calculating their so-called “supplemental leverage ratio.” Without an equivalency recognition, European banks will likely have to incur substantial extra capital charges to clear trades on US clearinghouses, while most banks will have to incur extra capital charges if offsets are not recognized for cleared positions.

OCC and FDIC Approves Final Margin Rule for Uncleared Swaps; Other Prudential Regulators Expected to Follow

Last week two prudential regulators – the Office of the Comptroller of the Currency and the Federal Deposit Insurance Corporation – announced their approved of a final rule governing margin requirements for so-called “covered swap entities” in connection with their uncleared swaps.

In general, the final rule addresses (1) when, in connection with uncleared swaps, CSEs must collect from and post with their counterparties initial and variation margin; (2) initial margin calculation methodologies; (3) eligible collateral that may be used to meet margin requirements; and (4) the treatment of collateral posted as margin. Non-financial end users are expected to be exempted from mandatory margin requirements under a related rule, but CSEs will be authorized to collect margin from such counterparties consistent with their overall credit risk management.

The Board of Governors of the Federal Reserve System, the Farm Credit Administration and the Federal Housing Finance Agency will also formally approve the new rule, which is mostly consistent with a proposed rule governing margin requirements for uncleared swaps issued by the five prudential regulators in September 2014. (Click here for details regarding the proposed rule in the article “FRB and Four Other Federal Agencies Propose Minimum Margin Rules for Uncleared Swaps” in the September 7, 2014 edition of Bridging the Week.)

Highlights of the final rule are that:

  • CSEs transacting with other swap entities and with financial end users are required to post and collect minimum margin amounts in connection with uncleared swap transactions, subject to certain exceptions;
  • CSEs are required to calculate initial margin requirements using a standardized margin schedule or an internal margin model approved by the relevant prudential regulator;
  • eligible collateral for both initial and variation margin requirements must be certain designated high-quality liquid assets that are expected to retain their value and remain liquid, although eligible collateral for variation margin will depend on the type of counterparty the CSE faces. All non-cash collateral is subject to a haircut; and
  • a CSE must require that any collateral it posts with a counterparty for initial margin is segregated at certain third-party custodians. A similar requirement exists for collateral received by a CSE from a swap entity or a financial end user with material swaps exposure (e.g., swaps exposure in excess of US $8 billion) – such collateral must also be segregated by the CSE at an independent third-party custodian.

In addition, the final rule addresses margin requirements for cross-border swap transactions involving CSEs and transactions between affiliates. For purposes of the final rule, affiliates will be determined on financial statement consolidation principles rather than securities-law control concepts.

The Commodity Futures Trading Commission and the Securities and Exchange Commission are required by law to separately adopt rules imposing margin and capital requirements on registered swap entities where there is no separate prudential regulator. Each has previously proposed margin rules for uncleared swaps. (Click here for background on the CFTC's proposal in 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 21, 2014 edition of Bridging the Week. Click here to access a copy of the SEC's proposal.)  

The final rule is consistent with the international framework developed in 2013 (and subsequently revised in 2015) by the Basel Committee on Banking Supervision and the International Organization of Securities Commissions (click here to access). It becomes effective April 1, 2016, but the compliance dates roll in at various times afterwards depending on the nature of the counterparties. The first compliance date, for example, is September 1, 2016, for the largest firms.

CSEs are entities prudentially regulated by one of the five agencies adopting the final rule and required to be registered as a swap dealer or a major swap participant with the CFTC or as a security-based swap dealer or a major security-based swap participant with the SEC.

(Click here for additional background on the final rule in the article, “Federal Regulators Adopt Final Margin Rules for Non-Cleared Swaps” in the October 23, 2015 edition of Corporate & Financial Weekly Digest by Katten Muchin Rosenman LLP.)

Briefly:

  • Acting UK FCA CEO Says Current Intensity of Regulatory Activity Is Not Sustainable: Tracey McDermott, Acting Chief Executive of the UK Financial Conduct Authority, acknowledged that the “intensity and volume of regulatory authority over recent years is not sustainable – for regulators or for the industry,” in a speech delivered last week at the annual City Banquet at Mansion House in London. She acknowledged that, if boards of financial service companies continue to spend the “majority of their time on regulatory matters… we will crowd out the creativity, innovation and competition which should present the opportunities for growth in the future.” In Ms. McDermott’s view, it is appropriate to re-evaluate all regulatory changes that have been implemented after a crisis (such as the financial crisis of 2007-2008) as “inevitably, among the many good and rational changes that arise… there will be some that don’t have the intended or expected impact.” However, she cautioned against too many changes lest the “pendulum swing too far in the other direction.” According to Ms. McDermott, regulators should focus on three principal objectives: (1) ensuring that applicable rules are enforced “fairly and decisively;” (2) competition is promoted; and (3) regulated firms don’t just comply with applicable rules, “but aspire to be better than that.” She said that such focus would constitute a “sustainable approach to regulation” that would break the seemingly traditional cycle of regulate and deregulate.

My View: Ms. McDermott’s commentary on the current regulatory environment is unusually frank for a leading regulator, as are similar remarks made last week by Timothy Massad, Chairman of the Commodity Futures Trading Commission. (See the article above entitled “Proposed Automated Trading Rule by CFTC Likely to Follow Already Existing Best Practices.”) Few would dispute that many of the legal and regulatory initiatives implemented following the 2007-2008 financial crisis were beneficial. However, the inconsistent approaches taken by conduct and bank regulators related to cleared derivatives – with the former promoting cleared derivatives and the latter penalizing banks for handling the same products – place banks and their customers in untenable positions. Moreover, the onslaught of particularized regulations, cross-border regulatory competition and the over-aggressiveness of many regulators to apply creative theories to prosecute seemingly trivial offenses has imposed significant extra costs on financial firms and their clients with unclear benefits. On the eve of clock adjustments in many countries worldwide, no one is seriously arguing a return in time to the pre-2007 regulatory environment. However, adjustments to regulatory approaches adopted since the last financial crisis should be considered – as suggested by Ms. McDermott – to ensure that financial services firms are able to provide robust services to their clients going forward, while requiring firms to maintain vibrant compliance cultures.

  • CFTC Enforcement Action Introduces New Theory of Spoofing: The Commodity Futures Trading Commission filed civil charges in a federal court in Chicago last week against an individual and the trading firm for which he serves as founder, president and chief executive officer for trading activity which it claimed constituted spoofing and employment of a manipulative and deceptive device, scheme or artifice. According to the CFTC’s complaint, on 51 days from December 2011 through at least January 2014 the individual caused his company to post passive orders to buy or sell at price levels at or near the best bid or order, behind existing orders. This practice allegedly enticed other traders to join his bidding or offering activity, said the CFTC. Within a few milliseconds, the individual would then cause the company to place an aggressive order on the opposite side of the market, at the same or better prices, utilizing “avoid orders that cross functionality,” charged the Commission. The CFTC said this feature – meant to avoid unintentional wash trades – automatically cancelled the company’s previously placed passive orders. However, it left the orders pending of the other traders that had joined the direction of the passive orders, claimed the CFTC, and the company’s new aggressive orders would be executed against some or all of these other traders’ orders. The CFTC claimed this practice – which it said occurred 1,316 times during the relevant time period – violated relevant law because the defendants never intended the original passive orders to be executed. “Their scheme,” said the CFTC, “created the appearance of false market depth that Defendants exploited to benefit their own interests, while harming other market participants.” The CFTC indicated that the allegedly problematic trading activity occurred on CME Group exchanges and the CBOE Futures Exchange. (Click here for further details regarding this matter.)

Legal Weeds: The alleged posting and flipping activity cited by the CFTC in this action is different from the conduct that allegedly constituted spoofing in prior actions recently filed by the Commission. In those actions, the defendants allegedly layered large orders on one side of the market to benefit smaller resting orders on the same or opposite side of the market that were executed when the market price moved in an intended direction. After execution, the alleged layered orders were promptly cancelled. (Click here for a discussion of the CFTC’s and Department of Justice’s legal actions against Navinder Sarao for alleged spoofing activity in the article “London-Based Futures Trader Arrested, Sued by CFTC and Criminally Charged With Contributing to the May 2010 ‘Flash Crash’ Through Spoofing” in the April 22, 2015 edition of Between Bridges.) Here, the CFTC does not allege that the purported conduct was intended necessarily to move the market price, but was principally intended to attract more market depth. However, at least one analyst examining the CFTC’s lawsuit, said it seems as likely the questioned trading activity could be explained by a trader simply changing his market view after placing an order and not seeing prices move as expected, as by any other explanation. (Click here to access the article by Matt Levine entitled “Regulators Bring a Strange Spoofing Case,” in the October 22, 2015 edition of BloombergView.) According to a statement issued by the chief compliance officer for the company, the CFTC’s charges are “completely without merit.” He said, “[t]he CFTC has oversimplified complex trading and is now trying to classify legitimate trading and risk management as a market infraction.”

  • International Bank Sanctioned by Multiple US Regulators for Allegedly Helping Clients Evade US Financial Sanctions: Five regulators settled charges against Credit Agricole S.A. and Credit Agricole Corporate & Investment Bank for allegedly engaging in prohibited transactions between 2003 and 2008 with countries and entities subject to US financial sanctions. The countries included Sudan, Iran, Myanmar and Cuba. The regulators included the US Department of Treasury, the Board of Governors of the Federal Reserve System, the US Attorney’s Office for the District of Columbia, the Manhattan District Attorney’s Office and the New York State Department of Financial Services. According to the regulators, Credit Agricole allegedly agreed to clients’ requests to disguise their identities in transactions in over US $32 billion of US dollar payments processed through its New York branch and unaffiliated US financial institutions, as well as to engage in financial sanction violations on their behalf. To resolve this matter, Credit Agricole agreed to pay US $787 million in total penalties and the imposition of certain undertakings.
     
  • FCM Penalized for Allegedly Exceeding Concentration Limits for Investment of Customer Funds in Money Market Products: BNP Paribas Securities Corp., a futures commission merchant registered with the Commodity Futures Trading Commission, settled charges brought by the agency that, on three dates in 2014, it violated rules restricting the amount of customer funds it could lawfully invest in money market funds. These rules prohibit an FCM from investing more than 50 percent of its customer funds in MMFs generally, and 10 percent of customer funds in an individual MMF. On two of the occasions, the error was caused by clerical entry mistakes, while on the other occasion the error was caused by a failure to detect an investment percentage overage, said the CFTC. Two of the errors were self-detected on the following business day, and self-reported by BNPP to the CFTC, acknowledged the Commission. BNPP agreed to pay a fine of US $140,000 to resolve this matter. It also agreed to “regularly review its policies and procedures and to provide training to ensure compliance with applicable regulation.” In accepting BNPP’s settlement, the CFTC acknowledged that no customer sustained losses as a result of BNPP’s alleged violations and recognized “BNPP’s cooperation during the investigation.”

Compliance Weeds: Following the collapse of MF Global in October 2011, the Commodity Futures Trading Commission amended a rule to further restrict permissible investments of customer funds by CFTC-registered future commission merchants. Among other things, the rules precluded FCMs from investing customer funds in non-US government guaranteed corporate obligations and foreign sovereign securities, and engaging in repurchase transactions with affiliated companies. In addition, the revised rule imposed concentration limits for certain asset classes (e.g., the maximum percentage an FCM can hold of that asset type compared to its total customer funds held in segregation). For example, these thresholds were set at 50 percent for US agency obligations, 10 percent for municipal securities, 25 percent for qualified certificate of deposits and 50 percent for money market funds other than MMFs including only US government securities. In addition, the revised rule amended issuer-based concentration limits. These included 25 percent for a single issuer of US agency obligations, 5 percent for a single issuer of municipal securities or qualified CDs and 10 percent for a MMF that does not hold US government securities. The CFTC considers that its customer funds investment requirements must be adhered to at all times. (Click here for further information on the CFTC’s investment rule for customer funds in the article “CFTC Adopts Final Rule on Investment of Customer Funds” in the December 9, 2011 edition of Corporate & Financial Weekly Digest by Katten Muchin Rosenman LLP.)

  • Two Affiliated Advisory Firms Sanctioned for Not Disclosing Change in Fund’s Investment Strategy: Two affiliated investment advisors settled charges brought by the Securities and Exchange Commission that they misled investors and filed misleading shareholder reports with the SEC by not disclosing a material change in investment strategy. According to the SEC, from 2000 through 2008, UBS Willow Management LLC promoted the UBS Fund Advisor L.L.C. as primarily investing in distressed debt (i.e., expecting distressed debt to rise in price). However, beginning in 2008 through the Fund’s demise in 2012, UBS Willow Management changed its strategy to capitalize on a decline in value in debt. UBS Willow Management accomplished this by buying large amounts of credit default swaps. However, claimed the SEC, after the Fund changed its investment strategy, UBS Willow Management continued to state its prior strategy in communications with investors, prospective investors, the Fund’s board of directors and the SEC. The SEC claimed that UBS Fund Advisor L.L.C., which had contractual control and supervised UBS Willow Management, was obligated to ensure that UBS Willow Management complied with its stated investment strategy or modified its disclosures. It did not, said the SEC. To resolve this matter, the two advisors agreed to pay total sanctions of US $17.5 million, of which more than US $13 million will be paid to investors for the Fund’s losses attributable to a change in the investment strategy.

And more briefly:

  • Judge Hearing Coscia Criminal Case Excludes Certain Evidence From Upcoming Trial: Last week the federal judge presiding over the Michael Coscia criminal trial for alleged spoofing ruled on motions by both the United States Attorney’s Office and the defendant to limit evidence the other side can introduce during trial. The judge ruled, contrary to a request by the United States Attorney’s Office, that Mr. Coscia will be allowed to introduce evidence related to applicable rules and regulations related to spoofing, to the extent he does so to show his good faith or absence of intent to defraud in connection with trading activity that is alleged to constitute a violation of law. The judge also granted Mr. Coscia’s motion to preclude the government from having CME Group and ICE Futures Europe witnesses testify about other traders’ complaints about his trading activity because this could be highly prejudicial to his defense. However, the judge denied Mr. Coscia’s motion to preclude the government from using the term “manipulation” at trial. The judge claimed that “[t]he term ‘manipulation,’ when used in the ordinary, non-legal sense that the Government describes, is not unfairly prejudicial.” Mr. Coscia’s criminal trial is scheduled to begin today. (Click here to access background on Mr. Coscia's criminal indictment in the article, "NJ-Based Trader Previously Sanctioned by UK FCA, CFTC and CME Indicted in Chicago for Same Spoofing Offenses" in the October 5, 2014 edition of Bridging the Week.)
     
  • NFA’s Interpretive Guidance Regarding Cybersecurity Becomes Effective March 1, 2016: All organization category members of the National Futures Association will be required to adopt and enforce written policies regarding cybersecurity by March 1, 2016. This follows the recent approval of NFA’s Interpretive Notice on Information Systems Security Programs by the Commodity Futures Trading Commission. The relevant membership categories include futures commission merchants, forex dealer members, swap dealers, major swap participants, introducing brokers, commodity trading advisors and commodity pool operators. Although NFA makes clear that its “policy is not to establish specific technology requirements,” it will require all relevant members to have supervisory procedures that are “reasonably designed to diligently supervise the risks of unauthorized access to or attack of their information technology systems, and to respond appropriately should unauthorized access or attack occur.” NFA expects, however, that firms’ supervisory systems will likely be different from one another “given the differences in the type, size and complexity of [m]embers’ businesses.” (Click here for more details on the NFA’s Interpretive Notice in the article “NFA Proposes Cybersecurity Guidance” (including My View) in the September 13, 2015 edition of Bridging the Week.)
     
  • Smaller Businesses Also Need to Be Concerned About Cyber Threats: In an article published in the Autumn 2015 edition of Cyber Security Review, Luis Aguilar, a commissioner of the Securities and Exchange Commission, warned small and medium-sized firms to be equally vigilant against cyber threats as larger firms. This is because, said Mr. Augilar, “small and midsize businesses are not just targets of cybercrime, they are its principal target.” According to Mr. Aguilar, smaller businesses are an attractive target for cybercriminals for one principal reason: smaller businesses “face precisely the same threat landscape that confronts larger organizations, but must do so with far fewer resources.”
     
  • CME Enforcement Actions Penalize Alleged Wash Trades and Money Transfers: Chicago Mercantile Exchange business conduct committees agreed to settlements with two individuals for allegedly engaging in prohibited wash trades and with a third individual, for purportedly engaging in certain round turn transactions solely to transfer funds between two accounts. In one action, the BCC determined that, between January 2012 and February 2013, James Roemer executed “numerous transactions” for two accounts he controlled for the purpose of “liquidating positions, transferring positions from one account to another, and avoiding maintenance margin requirements.” The BCC said these transactions were prohibited wash trades. Mr. Roemer agreed to pay a fine of US $10,000 to resolve this matter and a 15-business day suspension from all trading activity on any CME Group exchange. The BCC determined that John Scott Mathews engaged in similar conduct from January through August 2012 which it also said constituted wash trading. Mr. Mathews agreed to a 30-day trading suspension on all CME Group exchanges to resolve this matter. Finally, Brett Simons agreed to pay a fine of US $15,000 and a 15-business day trading suspension on CME Group exchanges for, on “several occasions” in December 2014, allegedly engaging in “numerous round turn transactions” to transfer funds between two accounts.

For more information, see:

Acting UK FCA CEO Says Current Intensity of Regulatory Activity Is Not Sustainable:
http://www.fca.org.uk/news/speeches/rapidity-of-change

CFTC Enforcement Action Introduces New Theory of Spoofing:
http://www.cftc.gov/idc/groups/public/@lrenforcementactions/documents/legalpleading/enfigorcomplnt101915.pdf

CME Enforcement Actions Penalize Alleged Wash Trades and Money Transfers:

John Mathews:
http://www.cmegroup.com/tools-information/lookups/advisories/disciplinary/CME-13-9525-BC-2-JOHN-SCOTT-MATHEWS.html#pageNumber=1
James Roemer:
http://www.cmegroup.com/tools-information/lookups/advisories/disciplinary/CME-13-9525-BC-1-JAMES-ROEMER.html#pageNumber=1
Brett Simons:
http://www.cmegroup.com/tools-information/lookups/advisories/disciplinary/CME-14-9746-BC-BRETT-SIMONS.html#pageNumber=1

FCM Penalized for Allegedly Exceeding Concentration Limits for Investment of Customer Funds in Money Market Products:
http://www.cftc.gov/idc/groups/public/@lrenforcementactions/documents/legalpleading/enfbnporder102015.pdf

International Bank Sanctioned by Multiple US Regulators for Allegedly Helping Clients Evade US Financial Sanctions:

Federal Reserve Order:
http://www.federalreserve.gov/newsevents/press/enforcement/enf20151020a1.pdf
NYSDFS Order:
http://www.dfs.ny.gov/about/ea/ea151019.pdf

Judge Hearing Coscia Criminal Case Excludes Certain Evidence From Upcoming Trial:
/ckfinder/userfiles/files/Coscia%20Ruling%20October%2019.pdf

NFA’s Interpretive Guidance Regarding Cybersecurity Becomes Effective March 1, 2016:

Notice to Members:
https://www.nfa.futures.org/news/newsNotice.asp?ArticleID=4649
Interpretive Notice:
http://www.nfa.futures.org/nfamanual/NFAManual.aspx?RuleID=9070&Section=9

OCC and FDIC Approve Final Margin Rule for Uncleared Swaps; Other Prudential Regulators Expected to Follow:
http://www.occ.gov/news-issuances/news-releases/2015/nr-occ-2015-142aaa.pdf

Proposed Automated Trading Rule by CFTC Likely to Follow Already Existing Best Practices; SEC Also Contemplating New Measures:

Timothy Massad:
http://www.cftc.gov/PressRoom/SpeechesTestimony/opamassad-30
http://www.cftc.gov/PressRoom/SpeechesTestimony/opamassad-31
Mary Jo White:
http://www.sec.gov/news/speech/taking-stock-of-treasury-market-regulation.html

Smaller Businesses Also Need to Be Concerned About Cyber Threats:
http://www.sec.gov/news/statement/cybersecurity-challenges-for-small-midsize-businesses.html

Two Affiliated Advisory Firms Sanctioned for Not Disclosing Change in Fund’s Investment Strategy:
http://www.sec.gov/litigation/admin/2015/33-9964.pdf

The information in this article is for informational purposes only and is derived from sources believed to be reliable as of October 24, 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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