International developments dominated regulatory news involving the financial services industry last week. The European Commission and the Commodity Futures Trading Commission finally inked a deal to recognize clearinghouses under each other’s oversight as subject to equivalent regulation, while the EC formally proposed to delay for one year the roll-out of MiFID II. In addition, the head of the investment office that housed the so-called “London Whale” agreed to settle charges with the Financial Conduct Authority for his alleged lack of forthrightness with the regulator in early 2012. Finally, MF Global Inc., whose sudden collapse rocked the futures industry in Fall 2011, effectively shut its doors for good when the US federal judge overseeing its liquidation formally closed the firm’s estate and ended its liquidation proceeding. As a result, the following matters are covered in this week’s edition of Bridging the Week:
Manager of Investment Office Housing London Whale Fined Equivalent of More Than US $1.1 Million by Financial Conduct Authority for Lack of Forthrightness;
CME Group Sanctions Members and Non-Members for Block Trades, EFRPs and Position Limits Infractions (includes Compliance Weeds);
Common Approach to Transatlantic CCPs Finally Agreed by EC and CFTC (includes My View);
Defendants in Pending Alleged Spoofing Case Told by CFTC Evidence Might Be Expanded to Include New February 2016 Conduct;
EC Formally Proposes Delaying MiFID II Rollout for One Year;
MF Global Inc. Estate Resolution Totally Wrapped-Up;
NFA Reminds Members of March 1 Compliance Date for Cybersecurity Written Policies and Procedures (includes Compliance Weeds); and more (including two more Compliance Weeds segments).
Overseas Entities: Count US-Arranged Security-Based Swaps in Security-Based Swap Dealer Calculation Says SEC: The Securities and Exchange Commission adopted final rules that will require non-US persons to include in a calculation necessary to assess whether they must be registered as a Security-Based Swap (SBS) Dealer all dealing activity involving security-based swaps with other non-US persons that is “arranged, negotiated or executed by that person’s personnel . . . or by its agent’s personnel who are located in a U.S. branch or office.” The requirement would apply in connection with SBSs executed over-the-counter, as well as to SBSs executed anonymously and cleared. The SEC’s requirement is similar to a requirement of the Commodity Futures Trading Commission articulated in a staff advisory in November 2013. However the effective date of the CFTC’s requirement has been delayed until the earlier of September 30, 2016, or the effective date of any CFTC action addressing related matters. The compliance date of the SEC’s new requirement is the later of 12 months after publication of the new rule in the Federal Register or two months prior to the last compliance date for a number of other requirements the SEC will impose on SBS dealers and major SBS participants—known as the “SBS Entity Counting Date.”
Manager of Investment Office Housing London Whale Fined Equivalent of More Than US $1.1 Million by Financial Conduct Authority for Lack of Forthrightness: Achilles Macris, the former head of the London branch of JPMorgan Chase Bank’s Chief Investment Office, agreed to pay a fine of just under GBP 793,000 (US $1.15 million) to the UKFinancial Conduct Authority for his alleged failure to be forthright with the Financial Services Authority (the FCA’s predecessor) during the early stages of the so-called “London Whale” trading incident in early 2012. This incident—which involved losses incurred by the Chief Investment Office’s trading of credit default swaps and tranches (principally by Bruno Iksil)—ultimately cost the bank more than US $6 billion in trading losses. According to FCA, from March 28, 2012, to April 29, 2012, Mr. Macris was the main contact for FSA at JPMorgan for the Chief Investment Office. Despite at least two formal meetings with FSA during this time, including one in person, Mr. Macris never advised FSA of the “full extent of the difficulties” the Chief Investment Office’s CDS portfolio was experiencing, alleged FCA. As a result, charged the FCA, “Mr. Macris failed to deal with the Authority in an open and cooperative way,” thus violating FCA requirements. JP Morgan settled a complaint brought by the Commodity Futures Trading Commission in October 2013 related to its London Whale trading incident by agreeing to pay a fine of US $100 million. The CFTC’s action against JPMorgan marked its first use of its then new anti-manipulation authority under the Dodd Frank Wall Street Reform and Consumer Protection Act to bring actions for so-called manipulative devices or artifices. (Click here for further background in the article, “US CFTC Files and Settles Charges against JP Morgan Chase Bank Employing Its New Anti-Manipulation Authority Related to Certain of the Bank's London Whale Trading,” in the October 21, 2013 edition of Bridging the Week.)
CME Group Sanctions Members and Non-Members for Block Trades, EFRPs and Position Limits Infractions: CME Group exchanges resolved a number of disciplinary actions last week alleging violations of its rules related to block trades, exchanges for related position transactions, and position limits. In two actions, related firms that had executed block trades on the New York Mercantile Exchange for customers agreed to pay fines to resolve charges that they had not reported such block trades to customers within time frames prescribed by NYMEX. Both firms (TFS Derivatives Corp. and TFS Energy Futures LLC) were non-members of NYMEX. The firms collectively agreed to pay fines totaling US $49,500. In three actions, two members (BNP Paribas Energy G.P and CHS Inc.) and one non-member entity (Fednav International Limited) of NYMEX resolved allegations they engaged in EFRP transactions without the transfer of a related position involving NYMEX futures contracts. The three firms were fined collectively US $55,000. For a bona fide EFRP, there must be a transfer of the related position. Finally, Zhou Peng, a non-member of the Commodity Exchange, Inc., agreed to pay a fine of US $25,000 and disgorge profits of $US 250,137.50 for violating a Comex spot month position limit on two days.
Compliance Weeds: Block trade reporting rules are specific by exchange, and can vary by product and time. On CME Group block trade reporting obligations for principal transactions lie with the seller unless agreed otherwise by the parties to the transaction. For brokered transactions, the reporting obligation lies with the broker unless agreed by the principal counterparties to the trade. (Click here for details regarding the reporting of block trades on CME Group (see Item 9: “Block Trade Price Reporting Requirements”) and here for details regarding the reporting of block trades on ICE Futures U.S. (see Q&A 9: “What are the reporting requirements for block trades).)
Common Approach to Transatlantic CCPs Finally Agreed by EC and CFTC: After three years of discussions, the Commodity Futures Trading Commission and the European Commission agreed on a framework to recognize that the other continent’s clearinghouses (CCPs) are subject to equivalent regulatory oversight. This is especially important for US CCPs. Without such a determination, a US clearinghouse could not be deemed a “qualifying CCP” under EU law and European banks carrying positions there would be subject to penalty capital charges. As part of the agreement, US clearinghouses seeking recognition in the EU will have to demonstrate compliance with certain new requirements that today are not typically required for all US CCPs, if any at all. Among other things, US clearinghouses must evidence that (1) for clearing members proprietary positions in exchange-trade derivatives, they collect initial margins sufficient to cover a two-day liquidation process; (2) their initial margin models have measures to mitigate the likelihood that in times of market stress initial margin requirements will increase from more stable times (i.e., procyclicality); and (3) they have sufficient resources to cover the default of the two members with the largest exposure to them. However, the requirement for US clearinghouses to collect initial margins sufficient to cover a two-day liquidation process would not apply to domestically traded agriculture derivatives. Under the framework, the CFTC will also make a determination that EU clearinghouses are subject to equivalent oversight. This will permit EU CCPs already registered with the CFTC as derivative clearing organizations, as well as those applying for registration, to meet certain CFTC requirements by complying with corresponding EU requirements. Once the EC finalizes its equivalence determination, the European Securities and Markets Authority anticipates “rapidly” resuming the recognition process for specific US clearinghouses that have previously applied for recognition.
My View: The resolution of the debate between the European Commission and the Commodity Futures Trading Commission over the equivalency of regulation of clearinghouses has taken far too long. However, both Jonathan Hill, the EC Commissioner for Financial Stability, Financial Services and Capital Markets Union, and Timothy Massad, CFTC Chairman, must be credited for finally ending this too drawn-out ordeal. As J. Christopher Giancarlo, another CFTC Commissioner recently wrote, the discord “was triggered by the previous CFTC administration acting unilaterally to impose US-trading requirements on participants in overseas markets and on non-US participants in American markets. …European regulators rightly viewed these requirements as a massive regulatory overreach.” It can only be hoped that this new accord will be a harbinger of greater coordination and cooperation between the EC and the CFTC built on respect and reliance for comparable if not equivalent regulation in different jurisdictions. Safe and liquid global markets will not exist if each global regulator seeks to impose its rules not only on transactions within its borders, but on extraterritorial transactions too.
Defendants in Pending Alleged Spoofing Case Told by CFTC Evidence Might Be Expanded to Include New February 2016 Conduct: The two defendants in an enforcement action filed last year by the Commodity Futures Trading Commission alleging spoofing under a novel “flipping” theory, were put on notice through a CFTC court filing that the agency may soon introduce evidence of certain of their recent trading activity which the CFTC claimed might be similar to trading it claimed was wrongful in its initial complaint. In October 2015, the CFTC filed civil charges in a federal court in Chicago against the two defendants—an individual and the trading firm for which he serves as founder, president and chief executive officer—claiming they engaged in trading on CME Group exchanges and the CBOE Futures Exchange that constituted spoofing and employment of a manipulative and deceptive device, scheme or artifice. (Click here for additional background on the original CFTC complaint in the article, “CFTC Enforcement Action Introduces New Theory of Spoofing” in the October 25, 2015 edition of Bridging the Week.) According to the CFTC, it recently “became aware of market participant complaints” regarding defendants trading in a futures contract on the Chicago Mercantile Exchange during early February 2016. The CFTC said the CME represented to it “the activity appeared to reflect a flipping pattern” similar to trading activity described in its October 2015 complaint. The CFTC indicated that “if [it] can confirm that the complained of conduct . . . constitutes evidence of Defendants’ continued illegal pattern of trading” the CFTC will renew its request to expedite a hearing for a preliminary injunction against the defendants for their alleged wrongful conduct. Last week, Trillium Management LLC issued an analysis claiming that the new trading activity cited by the CFTC, "looks close enough to a trader legitimately changing his outlook and switching sides to not give rise ...to an inference of manipulative intent" (click here to access Trillium's full analysis). According to a statement by an outside spokesman for the two defendants published in Bloomberg Business (click here to access the relevant article), “[i]t is unfortunate that the CFTC is relying on complaints made by certain of our firm’s competitors to attempt to expand the scope of an investigation that has been misguided from the outset.”
EC Formally Proposes Delaying MiFID II Rollout for One Year: The European Commission formally proposed delaying for one year until January 3, 2018, the roll-out date for the Markets in Financial Instruments Directive II. The EC said the delay was necessary because “neither competent authorities, nor market participants, would have the necessary systems ready by 3 January 2017.” MiFID II and its companion regulation, the Markets in Financial Instruments Regulation, are comprehensive measures that once finally implemented, will greatly increase regulation of European financial markets by (1) requiring the trading of certain financial and commodity instruments on regulated venues “whenever appropriate;” (2) increasing obligations on certain algorithmic traders; and (3) obligating speculative traders to limit the size of their net position in commodity derivatives. The European Parliament and the European Council must approve the EC's proposal for a one-year delay for it to become effectuated. Click here for background regarding MiFID II in the article, "ESMA Publishes Final Technical Standards for MiFID II" in the October 4, 2015 edition of Bridging the Week.)
MF Global Inc. Estate Resolution Totally Wrapped-Up: The tumultuous life of MF Global Inc. ended last week when the US federal judge overseeing the liquidation of the company formally closed the firm’s estate and ended its liquidation proceeding. MF Global—formerly a futures commission merchant registered with the Commodity Futures Trading Commission and one of the largest futures brokers worldwide—filed for bankruptcy on October 31, 2011, after it could not locate more than US $1.5 billion in customer funds. Since then, the estate has made all of MF Global’s customer claimants whole, returning US $6.9 billion to cover 100 percent of allowed claims. The estate also has paid US $35 million to cover 100 percent of allowed claims of secured, administrative and priority creditors and US $219 million to cover 95 percent of allowed claims of non-affiliate general creditors. An enforcement action filed by the CFTC in June 2013 against John Corzine, CEO of MF Global, and Edith O’Brien, Assistant Treasurer of the firm, claiming that the parent company of MF Global and the two individuals failed to segregate and misused MF Global customer funds, is still pending. (Click here for details of the CFTC enforcement action in the article “CFTC Files Long Awaited Enforcement Action Related to MF Global Collapse” in the June 27, 2013 edition of Between Bridges.)
NFA Reminds Members of March 1 Compliance Date for Cybersecurity Written Policies and Procedures: The National Futures Association reminded all members that they must, by March 1, 2016, adopt and enforce written cybersecurity policies and procedures to secure customer data and ensure access to their electronic systems. NFA made clear it is not seeking a “one-size-fits-all approach” to the application of its requirements. Instead, as it has stated previously, it expects members to have policies and 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.” (Click here for background on the NFA’s requirements in the article, “NFA Proposes Cybersecurity Guidance” in the September 13, 2015 edition of Bridging the Week.)
Compliance Weeds: National Futures Association’s requirement for members to adopt and enforce a written information security program applies to all members no matter what size. Although the contents of an ISSP will likely vary greatly from member to member, it must be “reasonably designed to provide safeguards, appropriate to the Member's size, complexity of operations, type of customers and counterparties, the sensitivity of the data accessible within its systems, and its electronic interconnectivity with other entities, to protect against security threats or hazards to their technology systems.” NFA’s interpretive notice regarding ISSPs sets forth what must be addressed in each written ISSP (click here to access), and the NFA has also posted on its website additional materials, including an audio recording, to help members comply with their requirements by March 1 (click here to access). Members that are part of larger holding company structures may rely on a consolidated group-wide ISSP. However, such group-wide ISSP must be appropriate to the NFA member’s security risks, and must be maintained in a readable and accessible manner that can be produced, upon request, to the NFA or the Commodity Futures Trading Commission.
And more briefly:
CFTC Requests FDY 2017 Budget Increase of US $80 Million and 183 More Full-Time Staff: The Commodity Futures Trading Commission requested a 2017 fiscal year budget of US $330 million, which permits the employment of 897 full-time persons. This represents an increase of US $80 million or 32 percent over current levels. The CFTC’s current budget for its 2016 fiscal year is unchanged from its budget for its prior fiscal year. According to CFTC Chairman Timothy Massad in testimony before the US House Committee on Agriculture last week, “it has become increasingly challenging to carry out our duties at our current funding level.”
Compliance Weeds: In the middle of its formal budget submission to Congress (page 19), the Commodity Futures Trading Commission noted that “[s]taff has also been conducting [future commission merchant] compliance reviews regarding Regulation 1.73, which requires FCMs to conduct screening of orders, to stress test customers and proprietary positions, to evaluate their ability to meet initial margin requirement and make variation margin payments, and to evaluate their ability to liquidate positions quickly.” Under the CFTC rule, FCMs are required to formally establish and maintain written procedures to comply with CFTC Rule 1.73 (click here to access a copy of the rule). The beginning of the year is a good time to double check that these procedures are sufficiently robust and reflect actual firm practices. It is never helpful to have written procedures that contradict day-to-day practices.
Korean Exchange Members Authorized by CFTC to Deal with US Persons for KRX Futures Contracts: The Commodity Futures Trading Commission granted an order authorizing certain members of the Korean Exchange to offer and sell futures and options traded on KRX to US persons, and carry funds and resulting positions on their behalf without having to register as a futures commission merchant. KRX members seeking to take advantage of this relief must first file certain information with the National Futures Association. KRX first applied for this relief for its members in January 2009.
Compliance Weeds: The Commodity Futures Trading Commission’s relief granted to certain members of the Korea Exchange only relates to such members’ transactions in futures and options on futures traded on KRX. The relief does not apply to members transacting in options on securities such as the Kospi 200 index options that do not reference a futures contract.
FCA and PRA Propose Formal Complaints Against the Regulator Regime: Both the Financial Conduct Authority and the Prudential Regulation Authority are seeking comments to amend their so-called “Complaints Scheme.” Under this scheme, both authorities appoint an independent person (known as a “Complaints Commissioner”) to formally investigate complaints against them. Under the proposed amendment, the Complaints Commissioner would be required to produce an annual report to be sent to each authority and Her Majesty’s Treasury summarizing complaints. The Treasury must provide the annual report and any response to the UK Parliament. Comments to the proposal must be made by March 9, 2016.
CFTC TAC to Discuss Regulation AT Rescheduled for February 24; EMAC to consider Swap Dealer De Minimis Exception Two Days Later: The Technology Advisory Committee of the Commodity Futures Trading Commission will meet on February 23, at the CFTC’s offices in Washington, DC. The topics discussed with include proposed Regulation AT, swap data harmonization and standardization and blockchain potential. On February 25, the CFTC’s Energy and Environmental Markets Advisory Committee will meet. Among the topics scheduled to be discussed is the CFTC Staff Preliminary report regarding the so-called “swap dealer de minimis exception.” (Click here for details on this report in the article, “Staff Issues Report on CFTC De Minimis Exception for Swap Dealer Registration But Makes No Recommendations” in the November 22, 2015 edition of Bridging the Week.)
CFTC Staff Grants No Action to Non-US IBs, CTAs and CPOs for Activities Involving Non-Mandated to Be Cleared Swaps for Non-US Persons: Staff of the Commodity Futures Trading Commission’s Division of Intermediary Oversight granted relief from US registration requirements to non-US persons acting in the capacity of commodity trading advisors, commodity pool operators and introducing brokers who execute a swap transaction bilaterally or on or subject to the rules of a swap execution facility for other non-US persons where the swap is not submitted for clearing through a registered FCM. Currently the applicable CFTC regulation provides an exemption for registration for such non-US persons only for such transactions if the swap is submitted for clearing through a registered FCM. Staff granted this relief because, currently, not all swaps are required to be cleared and some swaps are not yet accepted for clearing by any derivatives clearing organization. The relief will expire only after an amendment to the relevant rule (Rule 3.10(c)(3)(i); click here to access the rule).
Principals of Former Precious Metals Dealer Agree to Settlement With CFTC Over Alleged Illegal Sales to Retail Customers: Mintline, Inc., Cindy Vandivier and Paul Vandivier agreed to settle an enforcement action brought by the Commodity Futures Trading Commission in a federal court in Florida that claimed they engaged in the unlawful sale of precious metals to retail clients on a financed or leveraged basis in violation of applicable law, as well as misappropriate customer funds and committed fraud. Under the terms of their settlement, defendants agreed jointly and severally to pay almost US $987,000 as restitution, and each of the individual defendants agreed to pay fines of US $1 million. Two weeks ago, the CFTC brought one case and settled another where it also alleged that companies and their principals engaged in illegal off-exchange retail-financed or leveraged transactions involving precious metals. (Click here for details in the article, “CFTC Charges One Firm and Settles With Another for Illegal Off-Exchange Precious Metals Transactions” in the February 7, 2016 edition of Bridging the Week.)
The information in this article is for informational purposes only and is derived from sources believed to be reliable as of February 13, 2016. 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.