Last week, the Commodity Futures Trading Commission settled an enforcement action against a trading firm and its clearing member affiliate for illegitimate exchange for related position transactions purportedly entered into by the trading firm. Although it appears that the clearing firm solely reported the relevant transactions to the Chicago Mercantile Exchange in its capacity as a clearing member and played no role in the execution of the EFRPs, it was charged by the CFTC as a principal violator as well as with failure to supervise. New law? Separately, the CFTC used its broad authority to prosecute the alleged attempted manipulation of the prices of commodities to bring an enforcement action against a non-US based energy company for activities occurring in Asia that were intended to artificially impact the prices of certain non-US physical positions and over-the-counter US-cleared swaps the firm held. As a result, the following matters are covered in this week’s edition of Bridging the Week:
Because of the US Thanksgiving holiday, there will be no regularly scheduled Bridging the Week on November 27. Bridging the Week will resume normal publication on December 4.
FCStone Merchant and FCStone Financial settled the CFTC’s charges without admitting or denying any of the Commission’s findings or conclusions.
In July 2015, wholly owned subsidiaries of INTL FCStone Inc., including INTL FCStone Markets LLC and INTL Commodities, Inc., were charged by CME Group exchanges with violating EFRP rules, typically by having insufficient or no documentation for the related position component of the EFRP. The firms paid a collective fine of US $160,000 to resolve the CME Group exchanges’ charges. (Click here for details in the article “FCStone Companies and Goldman Sachs Receive Largest Fines in CME Group’s 27 Disciplinary Actions Cascade” in the July 26, 2017 edition of Bridging the Week.)
Compliance Weeds and My View: EFRPs are privately negotiated transactions between two parties. They involve, by each party, the simultaneous purchase or sale of an exchange futures or options contract and the opposite-side-of-the-market sale or purchase of an equivalent quantity of a cash product, by-product, or over-the-counter derivative instrument that has a “reasonable degree” of price correlation to the commodity referenced in the exchange contract. (Click here for background in CME Market Regulation Advisory Notice RA1716-5 (October 18, 2017).) If one party buys the exchange contract and sells the risk position, the other party sells the exchange contract and buys the risk position.
EFRPs are an approved exception to the CFTC’s requirement that all futures and related option transactions must be executed “openly and competitively by open outcry or posting of bids and offers or by other equally competitive methods, in the trading pit or ring or similar place provided by [a] contract market.” However, for EFRPs to be authorized, they must be executed “in accordance with written rules of the contract market that have been submitted to and approved by the Commission” that provide for noncompetitive transactions. (Click here to access CFTC Rule 1.38(a).)
The CFTC alleged that the futures and related positions of FCStone Merchant’s EFRPs were not sufficiently correlated consistent with CME requirements. As a result, the transactions violated the applicable CME rule. The CFTC explained that, because the futures component of the EFRPs were privately negotiated, not competitively executed, and were in violation of CME rule, they did not fit within the Commission's safe harbor. Accordingly, FCStone Merchant was charged by the CFTC with executing noncompetitive transactions in violation of applicable law and the relevant CFTC rule.
FCStone Financial, the clearing member affiliate of FCStone Merchant, was also charged with engaging in non-bona fide futures transactions and failure to supervise as a result of its reporting of its affiliate’s transactions to CME. (Click here to access CFTC Rule 166.3.) Based on the facts set forth in the relevant settlement order, it appears the CFTC’s beef against FCStone Financial was that, by reporting its affiliate’s transactions to the CME as EFRPs in the first place, the firm effectively represented they were bona fide. FCStone Financial made this implicit representation, without independently verifying the legitimacy of FCStone Merchant’s transactions, implied the Commission.
However, neither this view of FCStone Financial’s obligations, nor the consequences of its activities, appears supported by law, let alone ordinary business practice.
The obligations of a CME clearing member in connection with EFRP transactions are limited and clear. A clearing member FCM may have a contractual obligation to report trades for its customer, which if it does, it must perform timely and accurately. A clearing member FCM also has certain confirmation reporting obligations to its customers as well as, potentially, large trader reporting requirements. (Click here for background in CME Market Regulation Advisory Notice RA1716-5 (October 18, 2017), Q/As 20 and 22-24.)
When a CME clearing member accepts an EFRP for processing, it does so solely as an agent for its customer – even if the customer is an affiliate. Indeed, under applicable CFTC rule, there is no obligation for a clearing member to even view the documentation underlying the EFRP of a customer unless expressly requested by an exchange, the CFTC or other authorized requesting body. The clearing member solely serves a bookkeeper role. According to the relevant CFTC rule:
Upon request of the designated contract market [or] the Commission, … each futures commission merchant, … and member of a designated contract market … shall request from its customers and, upon receipt thereof, provide to the requesting body documentation of cash transactions underlying exchanges of futures...
(Emphasis added; click here to access CFTC Rule 1.35(c)(1).)
Under this rule, if in response to a regulatory request a clearing member asks a customer for underlying EFRP documentation and the customer fails to comply, the clearing member is not liable for the failure of the customer. It is only required to provide to an authorized requesting body documentation it actually receives from a customer.
A prior CME Group guidance governing EFRPs was potentially ambiguous in one part regarding a clearing member’s role in the processing of EFRPs. It said that clearing members should exercise “due diligence” to identify circumstances when a customer’s EFRP transactions might be non-bona fide. However, the MRAN made clear that, despite this ambiguous language, a clearing member would only be liable for an exchange rule violation if the “clearing member ha[d] notice or knowledge of the execution of non-bona fide EFRPs by its customer and [failed] to take appropriate action.” (Click here for details in CME Group MRAN RA-1612-5 (September 20, 2016).)
In any case, a few weeks ago, CME Group amended this MRAN to expressly eliminate the ambiguous language. Now, solely if “a clearing member has actual or constructive notice or knowledge of the execution of non-bona fide EFRPs by its customer and the clearing member fails to take appropriate action” will a clearing member be deemed to have violated the applicable CME EFRP rule. (Click here for background in the article “CME Group Proposes to Eliminate Requirement for Clearing Members to Detect Non-Bona Fide EFRPs; Cautions Traders on Orders During the Globex Pre-Open” in the October 22, 2017 edition of Bridging the Week.)
Only persons actually executing EFRPs appear potentially liable under the law and CFTC rule governing non-competitive transactions; the legal provisions referenced by the CFTC to prosecute FCStone Financial do not address the reporting of such transactions to exchanges. (Click here to access 7 USC §6c(a)(1) and (2) and here to access CFTC Rule 1.38. It appears the Commission may be relying on language referencing the confirmation of a transaction in the statute; but in the context of the statute standing alone as well as read jointly with the applicable CFTC rule, it seems clear that the reference could not apply to reporting to an exchange by a non-principal actor to the relevant transactions.)
Moreover, it is not clear what the CFTC’s basis was to charge FCStone Financial with failure to supervise. An FCM has no apparent obligation to supervise its customer’s EFRP activities – including activity of affiliates – absent affirmative notice of wrongdoing or constructive notice that something untoward is going on. An FCM is not a guarantor of its customers compliance with law.
In September, the CFTC similarly charged Merrill Lynch, Pierce, Fenner & Smith Incorporated, another FCM, with failure to supervise for not diligently overseeing responses to a CME Group Market Regulation investigation related to block trades executed by its affiliate, Bank of America, N.A. According to allegations by the Commission, Merrill’s regulatory breach derived from it not independently assessing information regarding the block trades provided to it by its affiliate that subsequently turned out to be false. (Click here for background in the article “FCM Agrees to Pay US $2.5 Million CFTC Fine for Relying on Affiliate’s Purportedly Misleading Analysis of Block Trades for a CME Group Investigation ” in the September 24, 2017 edition of Bridging the Week.) There was nothing in the CFTC’s settlement order that suggested that Merrill Lynch was on notice of something untoward in connection with its CME production on behalf of its client.
Both this enforcement action involving FCStone Financial and the CFTC’s prior action against Merrill Lynch suggest that the Commission may be expanding its view of the supervisory obligation of FCMs regarding the compliance by their customers of laws and rules governing the conduct of customers – even without an FCM's actual or constructive knowledge of any violation. This, however, would be an impractical obligation and does not appear supported by language in any existing law or rule.
At a minimum, if this is an evolving Commission view, the CFTC should at least issue formal guidance so that brokers can better understand their new responsibilities going forward. More appropriately, however, if the CFTC seeks to expand the reach of an existing rule, it should do so through a formal rulemaking process with an opportunity for public comment, rather than through enforcement actions.
Legal Weeds: Relevant law makes it unlawful to manipulate or attempt to manipulate the price of any commodity in interstate commerce or for future delivery on or subject to the rules of any registered entity, or of any swap. (Click here to access 7 USC §13(a)(2).)
Although the CFTC asserted jurisdiction over Statoil’s purported attempted manipulation outside the US by referencing its potential impact on NYMEX-cleared swaps, the important lesson learned from this matter is that the CFTC has the authority to prosecute alleged manipulative and attempted manipulative conduct involving the price of any commodity in interstate commerce whether it has a potential impact on futures or swaps or not.
The CFTC has similar broad authority under the relatively new provision of law (enacted as part of the Dodd-Frank Wall Street Reform and Consumer Protection Act) and Commission regulation that prohibits any person from using a manipulative or deceptive device or contrivance in connection with any “contract for sale of any commodity in interstate commerce” – not solely in connection with swaps or a commodity for future delivery on or subject to the rules of any registered entity. (Click here to access CEA Section 6(c)(1), 7 USC §9(1) and here for CFTC Rule 180.1(a).)
Recently, the CFTC relied on this broad authority to file an enforcement action in a federal court in New York City against Gelfman Blueprint, Inc., and Nicholas Gelfman, its chief executive officer and head trader, for purportedly running a Ponzi scheme related to Bitcoin. However, the CFTC’s allegations regarding the defendants’ handling of Bitcoin pertained to Bitcoin alone, not futures or swaps based on Bitcoin. (Click here for background in the article “CFTC Files Charges Alleging Bitcoin Ponzi Scheme Not Involving Derivatives” in the September 24, 2017 edition of Bridging the Week.)
In other cryptocurrency developments last week:
My View: As I have written previously, it is hard for me to imagine that blockchain technology, including the use of smart contracts, will not increasingly play a pivotal role in finance as well as other fields. As Commodity Futures Trading Commission Chairman J. Christopher Giancarlo said last week in Singapore, “Shared ledger technology, which holds promise in increasing operational efficiencies, may also help facilitate real-time, standardized, and lower-cost regulatory reporting… And related application of contracts … could result in the potential decrease of execution risk, more efficient use of trade-related margin and collateral, and the incorporation of automated regulatory compliance provisions into the contract code.” (Click here for Mr. Giancarlo’s full speech before the Singapore FinTech Festival.)
Moreover, as long as a blockchain’s protocol is widely distributed and decentralized, its network will likely be dependent on the use of a digital coin of some type to provide incentives to miners or other persons who maintain the system’s integrity. At least some of these digital coins will continue to grow in popularity as a medium of exchange, much as Bitcoin and Ether have already attracted a widespread following.
However, while there have been increasing regulatory pronouncements that cryptocurrencies issued as part of initial coin offerings may be securities subject to local regulations – including by the US Securities and Exchange Commission – less is clear about cryptocurrencies later in their life when they principally serve as a medium of exchange.
The CFTC has declared that such cryptocurrencies are commodities, and asserted its right to impose requirements on any purveyor of such commodities for future delivery and spot cryptocurrencies sold to retail persons where there is financing and actual delivery does not occur within 28 days. Relying on this authority, the CFTC designated LedgerX as a swap execution facility and derivatives clearing organization for fully collateralized digital currency swaps in July 2017. Moreover, the CFTC has said that it has jurisdiction over purveyors of cryptocurrencies who engage in deceptive activities or contrivances in connection with purchases and sales of such commodities, even where there is no futurity or financing involved. (Click here for a general background of CFTC regulation of cryptocurrencies in the article “LedgerX Approved by CFTC as First Derivatives Clearing Organization for Fully Collateralized Swap Contracts Potentially Settling in Bitcoin” in the July 30, 2017 edition of Bridging the Week.)
However, other than the CFTC’s potential oversight, most spot transactions in cryptocurrencies are essentially unregulated. Persons holding cryptocurrencies for others or engaging in a business of exchanging cryptocurrencies for other cryptocurrencies or fiat currencies likely have to register with the Financial Crimes Enforcement Network of the US Department of Treasury, as well as possibly one or more state agencies. There is also a heightened regulatory structure for persons engaged in certain cryptocurrency business activities involving New York or a NY resident under NY's BitLicense scheme, and a model code promoting equivalent oversight may be rolled out to other states in the near future. However, FinCEN's and the states' regulation is mostly focused on promoting sound anti-money laundering practices and customer funds protection, not trading oversight. (Click here for background regarding the Uniform Regulation of Virtual Currency Business Act, FinCEN regulation and NY BitLicense requirements in the article “Model State Law Regarding Virtual Currency Businesses Virtually Finalized” in the August 20, 2017 edition of Bridging the Week.)
As a result, there is no effective functional regulation of cryptocurrency businesses (other than of regulated CFTC entities), including spot exchanges, that helps ensure on an ongoing basis that prices are derived through ordinary market forces and are not manipulated or otherwise artificially distorted. This is among the reasons why the SEC refused earlier this year to approve a proposed rule change by the Bats BZX Exchange, Inc. to list and trade shares of the Winklevoss Bitcoin Trust – whose pricing was to be based on the prices of a spot Bitcoin exchange related to the Trust (click here for details).
The attraction of a decentralized distributed ledger system to some is to exist outside of government control and oversight. However, smart government regulation or proactive self-regulation (with mandatory third-party verifications) could further promote the credibility of a still nascent technology and help ensure that unintended consequences don’t derail what should be highly useful applications in the future. Uncoordinated government regulation, however, should be avoided at all costs.
For further information:
CFTC Staff Extends Block Trading Relief for SEFs:
Co-SEC Enforcement Directors Emphasize Individual Accountability in Discussing Their Division’s Priorities:
FINRA Promises Review of Order Routing Payments:
Five Financial Industry Organizations Ask SEC to Modernize Record-Retention Rule:
Non-US Energy Company Agrees to Pay US $4 Million to Resolve CFTC Charges of Attempted Manipulation of Asia-Centric Propane Benchmark Index:
NY Financial Regulator Fines International Bank US $135 Million for Attempted Manipulation and Other Offenses in Its FX Trading Business:
SEC Chairman Denies Request to Formally Delay First Phase of CAT Rollout:
Second Lawsuit Against Tezos ICO Backers Filed; CME Group Schedules Testing of US Dollar Futures Contract Based on Bitcoin:
Trading Firm and Broker Affiliate Settle CFTC Enforcement Action for Trading Firm’s Alleged EFRP Transactions With Insufficiently Correlated Futures and Physical Legs:
The information in this article is for informational purposes only and is derived from sources believed to be reliable as of November 18, 2017. No representation or warranty is made regarding the accuracy of any statement or information in this article. Also, the information in this article is not intended as a substitute for legal counsel, and is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The impact of the law for any particular situation depends on a variety of factors; therefore, readers of this article should not act upon any information in the article without seeking professional legal counsel. Katten Muchin Rosenman LLP may represent one or more entities mentioned in this article. Quotations attributable to speeches are from published remarks and may not reflect statements actually made.