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Bridging the Week: Feb 6 to 10, Feb 13, 2017 (Retail FX Dealer to Close; Top Five IA Compliance Topics; Disaggregation; CPO Delegation)

A renowned retail foreign exchange dealer agreed to shut its doors as a result of enforcement actions taken by the Commodity Futures Trading Commission and the National Futures Association, while the Securities and Exchange Commission’s Office of Compliance Inspections and Examinations provided a top five list of issues it has seen during investment adviser inspections. Although some of OCIE’s identified topics are likely of interest only to investment advisers, most of its observations regarding compliance procedures are relevant to all SEC and CFTC registrants and supporting practitioners. As a result, the following matters are covered in this week’s edition of Bridging the Week:

  • Retail Foreign Exchange Dealer Agrees With CFTC and NFA to Cease Doing Business for Concealing Relationship With Closely Tied Market Maker;

  • SEC OCIE Provides Top Five List of Most-Identified Compliance Topics During Investment Adviser Examinations (includes Legal Weeds and Compliance Weeds);

  • CPO and Owner Sanctioned by CFTC for Violations of Law and Rules (includes Compliance Weeds);

  • CFTC Staff Grants Six-Month Delay for Firms to File Mandatory Disaggregation Notices (includes Compliance Weeds);

  • No-Action Relief Regarding CPO Delegations Penned by CFTC’s Division of Swap Dealer and Intermediary Oversight (includes My View); and more.

Retail Foreign Exchange Dealer Agrees With CFTC and NFA to Cease Doing Business for Concealing Relationship With Closely Tied Market Maker

Forex Capital Markets, LLC, a retail foreign exchange dealer, and two of its principals – Dror Niv and William Ahdout – agreed to terminate their business to settle charges by the Commodity Futures Trading Commission that, from April 2010 through 2014, the firm misled customers when it had an interest in a market maker that often traded opposite FXCM’s customers while advising them that the firm executed transactions solely on an agency basis. The defendants consented to withdraw from registration with the CFTC and to pay a fine of US $7 million.

Contemporaneously, FXCM, the same two principals and Ornit Niv, currently the chief executive officer of FXCM and sister of Dror Niv, resolved charges brought by the National Futures Association based on the same basic facts by also agreeing to withdraw as members of NFA. (Dror Niv was CEO of FXCM from 2001 through 2014.)

Under the CFTC’s settlement order, the defendants agreed to withdraw their registration by March 8; while under the NFA’s settlement order, the respondents agreed to withdraw their registration by February 21.

According to both regulators, beginning in 2007, FXCM held itself out to the majority of its customers as using an agency model of trading, which it described as “No Dealing Desk” forex trading. However, alleged the CFTC and NFA, beginning in May 2010, FXCM began routing customer trades to Effex Capital LLC, which traded opposite FXCM’s customers; was headed by a former FXCM managing director; and paid FXCM approximately 70 percent of its trading profits in exchange for FXCM customer order flow. FXCM had provided Effex a US $2 million loan to begin its operations and permitted Effex to use a trading algorithm that was its intellectual property, alleged the CFTC. Moreover, claimed the NFA, “FXCM allowed Effex to engage in abusive execution tactics, which denied FXCM’s retail customers favorable price improvement and benefitted Effex and FXCM financially.”

In 2011, both the CFTC and the NFA imposed fines against FXCM of US $8 million combined for disadvantaging its customers in trade executions. In 2014, the UK Financial Conduct Authority fined FXCM affiliates' Forex Capital Markets Ltd and FXCM Securities Ltd. UK £4 million (US $6.7 million) for the same essential offense.

Following the unexpected decoupling of the Swiss Franc and the Euro exchange rate by the Swiss National Bank in January 2015, FXCM received a US $300 million infusion from Leucadia National Corporation “to meet its regulatory-capital requirements and continue normal operations” after losing US $225 million. (Click here for details.)

Briefly:

  • SEC OCIE Provides Top Five List of Most-Identified Compliance Topics During Investment Adviser Examinations: The Securities and Exchange Commission’s Office of Compliance Inspections and Examinations published a Risk Alert that set forth the five topics that it most often identified in deficiency letters it issued to registered investment advisers. These topics included “deficiencies or weakness” in complying with SEC requirements that an IA (1) have and follow written policies and procedures reasonably designed to ensure its compliance with law (its so-called “compliance rule”; click here to access Advisers Act Rule 206(4)-7); (2) timely make certain regulatory filings; (3) comply with its requirements when it directly or indirectly holds, or has authority to obtain, clients funds or securities (its so-called “custody rule”; click here to access Advisers Act Rule 206(4)-2); (4) have a code of ethics; and (5) retain certain enumerated books and records. Among the specific problems OCIE witnessed in connection with IAs’ failure to adhere to their compliance policies and procedures were IAs’ (1) use of compliance manuals that did not reflect the firm’s business practices and were sometimes simply “off-the-shelf”; (2) failure to conduct required annual reviews or to follow up on issues identified in such reviews; (3) failure to follow their written policies and procedures; and (4) use of outdated compliance manuals that referenced investment strategies that were no longer employed, employees that no longer worked at the IA, or information about the firm that was outdated. OCIE noted that its identification of issues at IAs resulted in a “range of action,” including referrals to the SEC’s Division of Enforcement.

Legal Weeds: Within the last two years, the SEC has on multiple occasions brought charges against the compliance officer of an investment adviser for its failure to adhere to its compliance rule requirements. This is despite the express language in the relevant rule that states that if you are an investment adviser (not the CCO of an IA) you must “adopt and implement written policies and procedures to prevent violation by you and your supervised persons” of applicable law (emphasis added). In one action involving the alleged misappropriation of customer funds by the president of an IA, the SEC charged the compliance officer with causing the firm not to have adequate policies and procedures reasonably designed to detect the theft. Earlier, the SEC similarly charged the chief compliance officer of BlackRock Advisors LLC for the firm’s failure to have compliance procedures that addressed the outside activities of employees and how such activities should be assessed for conflict purposes, and when such activities should have been disclosed to BlackRock’s board of directors or its advisory clients (click here to access the relevant SEC enforcement order). These actions confused the role of compliance officers and business supervisors and misguidedly placed on compliance officers untenable obligations and potential liability. Hopefully, the SEC under new leadership will not follow a similarly mistaken approach.

Compliance Weeds: Too often registrants adopt cookie-cutter policies and procedures manuals that are overly generic and mostly parrot regulatory requirements without meaningfully reflecting how the firm will actually comply with such obligations. Moreover, policies and procedures, once adopted, sometimes become company heirlooms that mostly gather dust on a shelf and are rarely consulted, let alone updated. Policies and procedures that are adopted to comply with regulatory requirements must be reasonably designed to address the relevant subject matter, should reflect the firm’s actual practices, and should be continually updated to reflect current practices and personnel. Moreover, before implementation and periodically afterwards, policies and procedures should be assessed holistically – ideally by non-drafters – to evaluate their completeness and effectiveness, and to recommend enhancements for improvement.

  • CPO and Owner Sanctioned by CFTC for Violations of Law and Rules: John Oden and Oden Capital Management settled charges brought by the Commodity Futures Trading Commission that they operated commodity pools contrary to law and CFTC regulations. According to the CFTC, from April through June 2014, Mr. Oden operated a pool of four participants – Oden Currency Fund, LP. He claimed an exemption from registration as a CPO because his pool had 15 participants or less and did not receive aggregate capital contributions in excess of US $400,000 from all investors (click here to access CFTC Rule 4.13(a)(2)). However, during the relevant period, Mr. Oden failed to comply with certain enumerated requirements necessary to operate pursuant to this exemption, including notifying participants of his registration exemption and its basis under law; providing investors monthly statements from each futures commission merchant showing the pool’s net profit and loss on closed positions since the prior statement; and not commingling participants’ funds with his own and his family members’ funds. In addition, OCM, a registered CPO of which Mr. Oden was the sole owner, chief compliance officer and principal, operated a separate fund – the Oden Currency Fund 1, LP – from November 2014 through December 2015 as a so-called “Regulation 4.7” exempt commodity pool (click here to access CFTC Rule 4.7). Under this exemption, commodity pools are relieved from certain formal disclosure and other obligations if the pool consists of certain enumerated qualified eligible persons; however, the CPO must comply with certain lesser obligations. The CFTC claimed that, during the relevant time, ODM (and Mr. Oden as ODM’s controlling person) did not comply with obligations to provide quarterly statements to investors that included the net asset value of the exempt pool and the change in value from the prior reporting period, and to always include an oath or affirmation regarding the accuracy and completeness of such statements. The defendants agreed to resolve the CFTC’s charges by jointly and severally paying a fine of US $100,000 and not managing other persons’ CFTC-regulated trading for five years.

Compliance Weeds: A bylaw of the National Futures Association makes it an offense for a member to conduct business with a non-member that is required to be registered with the CFTC, but is not (click here to access NFA Bylaw 1101), As a result, NFA members must have procedures to reasonably ensure they do not engage in business with unauthorized persons, including reviewing NFA’s BASIC system to confirm that an entity is registered or lawfully exempt. However, NFA members must be mindful that registration-exempt CPOs and commodity trading advisers have until March 1 of each year to file with the NFA an annual affirmation regarding their exemption. As a result, such persons’ status may be uncertain for a brief time at the beginning of each year. The NFA has made clear, however, that members that take reasonable steps to assess the registration and membership status of previously validly exempt persons will not be deemed to be in violation of the relevant NFA bylaw if between January 1 and March 31, they transact customer business with a previously exempt person that fails to become registered with the CFTC when it should, or fails to file a valid notice of exemption.

  • CFTC Staff Grants Six-Month Delay for Firms to File Mandatory Disaggregation Notices: The Commodity Futures Trading Commission’s Division of Market Oversight issued a no-action letter extending for six months the time persons eligible for certain disaggregation relief under the Commission’s new aggregation requirements must file a required notice with it. Originally, notices had to be filed by February 14; under this relief they must now be filed by August 14. Previously, and under amendments to the CFTC’s aggregation standards adopted during December 2016, a trader of futures and related options positions in any of the products where the CFTC has directly established position limits (click here to access CFTC Rule 150.2) must aggregate positions it holds directly with positions in accounts in which it controls the trading or has a 10 percent or more ownership interest unless there is enumerated exemption from aggregation. Two notable exemptions are the independent account controller exemption – available to so-called eligible entities (e.g., commodity pool operators and commodity trading advisors) that trade pursuant to separate trading systems and satisfy certain requirements (e.g., have and enforce written procedures to prevent affiliated entities from having knowledge about, gaining access to or receiving information about the trades of the other; trade accounts pursuant to separate and independent trading systems; market such systems separately; and use separate disclosure documents to solicit funds) and the new owned-entity exemption. (Click here to access revised CFTC Rules 150.4(b)(4) and (2), respectively, effective February 14.) Under the new owned entity exemption, a company and a greater than 10 percent owned subsidiary need not aggregate positions if they do not have knowledge of the trading decisions of each other; trade pursuant to separately developed and independent trading systems; and have and enforce written procedures to prevent each from having knowledge about, gaining access to or receiving information about the trades of the other – including separate physical locations –, among other requirements. Under the Division’s no-action letter, only the notice filing requirement is waived until August 14. Other obligations to qualify for disaggregation (e.g., for the IAC and owned-entity exemptions – having requisite written policies and procedures) must be complied with by February 14. The CFTC has set up a portal on its website on its Forms and Submissions page to accommodate persons wanting to file notices of disaggregation relief prior to August 14 (click here to access this page).

Compliance Weeds: The CFTC’s no action letter does not impact separate exchange rules related to IAC, owned-entity or other disaggregation exemptions that may already require the filing of a specific request. (Click here to access, e.g., CME Group Rule 559.E — “Any person claiming an exemption from position limits under this Section must file a written request in the form specified by the Market Regulation Department, providing details of the request.” At ICE Futures U.S., only a person seeking an owned entity disaggregation exemption must file a formal request – not an IAC exemption; click here to access ICE Futures Rule 6.12(c).)

  • No-Action Relief Regarding CPO Delegations Penned by CFTC’s Division of Swap Dealer and Intermediary Oversight: The Commodity Futures Trading Commission’s Division of Swap Dealer and Intermediary Oversight authored four virtually identical no-action letters that excused a Cayman Islands-based trustee from registration as a commodity pool operator where, in connection with its acting as trustee of a Cayman Islands-based commodity pool, it delegated all its investment management authority to a registered CPO. Previously the Division granted broad no-action relief to non-natural persons who might otherwise be required to register with the CFTC as CPOs if they delegated all their investment management authority to another non-natural person CPO it owned, that owned it, or was under common control, among other conditions. (Chief among these conditions is that the delegating CPO and the designated CPO agree to be jointly and severally liable for violations of law by the other click here to access CFTC NAL 14-126) The currently granted relief, as in a prior no action letter issued earlier this year (click here to access CFTC NAL 17-01), waives this common control requirement for non-natural persons.

My View: The CFTC has long taken an expansive view of the definition of commodity pool operator and who must be registered with it as a CPO. Under the relevant statute, a CPO is “any person engaged in a business that is of the nature of a commodity pool, investment trust, syndicate, or similar form of enterprise, and who, in connection therewith, solicits, accepts, or receives from others, funds, securities, or property, either directly or through capital contributions, the sale of stock or other forms of securities, or otherwise,” to trade commodity interest contracts – like futures and related options – regulated by the agency. (Click here to access Commodity Exchange Act, § 1(a)(11).) Although the CFTC has through regulation or otherwise routinely exempted certain persons from CPO registration requirements, the CFTC begins its analysis by applying its broad view. Thus, for example, in connection with overseas-organized funds organized as corporations, the CFTC takes the view that all directors are CPOs even if under company charter or otherwise, not all directors – particularly non-affiliated directors – have investment management authority of any kind. (Click here to access CFTC NAL 14-69; see fn. 9.) Although the CFTC has provided a welcome mechanism for delegation of such presumed investment management authority in such circumstances, it is premised on a false presumption and a too broad reading of the relevant statute. Hopefully the CFTC can re-examine its historical views under its new leadership.

And more briefly:

  • IOSCO Publishes State of FinTech Overview: The International Organization of Securities Commissions issued a report on developing financial technologies, including financing platforms, retail trading and investment platforms, institutional trading platforms and distributed ledger technologies. In its discussion on DLT, IOSCO discussed some of the potential uses including the maintenance of corporate records, processing corporate actions more efficiently, revamping the clearing and settlement processes of cash equities, trading and settling over-the-counter derivatives, accommodating loan syndication, better keeping track of repo transactions and re-hypothecation; trading short term debt, and automation of know-your-customer and anti-money laundering compliance processes. IOSCO said the potential technological challenges to DLT were scalability, interoperability, cyber resilience, governance, and management of the cash leg of transactions, transparency, and recourse mechanisms.

  • CME Group Member’s Summary Suspension Ended: A limited summary access denial order implemented by the New York Mercantile Exchange on January 5 against Eldorado Trading Group LLC for allegedly engaging in certain disruptive trading-type activities involving trading at settlement orders was suspended. The order had prevented Eldorado from trading TAS, placing TAS orders and controlling or directing TAS trading for any person. According to Nymex, Eldorado demonstrated to CME Group’s Market Regulation department that it had implemented measures to its TAS order entry and messaging practices to avoid the problematic practices. (Click here for background.)

  • Senate Agriculture and Judiciary Committees Chairmen Raise Concerns Regarding CFTC Handling of Whistleblowers: Pat Roberts, chairman of the Senate Agriculture Committee, and Charles Grassley, chairman of the Senate Judiciary Committee, sent a letter to J. Christopher Giancarlo, acting chairman of the Commodity Futures Commission, requesting an update on how the CFTC is addressing a recent Office of Inspector General Report that “paint[ed] a troubling picture of CFTC personnel violating agency policies, abusing administrative privileges, repelling industry ‘best practices’ concerning information system security, and failing short of established standards and guidelines.” The June 27, 2016 OIG report the chairmen referenced related to a computer security incident at the CFTC and “potentially problematic activity involving personnel in the Commission’s Office of Data and Technology (click here to access the OIG report). The OIG Report indicated that no CFTC system or sensitive information was compromised despite initial concerns, but that a contractor who had expressed his concerns regarding CFTC conduct was improperly subject to retaliatory actions.

  • Financial Stability Board Makes 14 Recommendations to Mitigate “Structural Vulnerabilities” of Asset Management: The Financial Stability Board issued recommendations regarding its view of the principal structural vulnerabilities in the asset management industry. These purported vulnerabilities include the liquidity mismatch of open-ended funds, leverage within funds and operational risk. In response, FSB made 14 policy recommendations that should be implemented by global financial regulators including collecting information on the various risks, heightening disclosure obligations, and implementing requirements that funds assets and investment strategies should align with the expected liquidity of the assets and investment, particularly under stressed market conditions. (The FSB was established in 2009 as the successor to the Financial Stability Forum to help promote international financial stability and coordinate national financial regulatory authorities and international standard setting organizations. Its members include representatives from financial regulators from 18 countries and the European Union.)

  • HK Regulator Sanctions Retail FX Dealer for Not Disclosing Slippage Handling Procedures That Harmed Investors: The Hong Kong Securities and Futures Commission fined GMO-Z.com Forex HK Limited HK $1.6 million (approximately US $206,000) for failing to disclose to its retail forex customers that their orders would not be executed until the firm’s hedge positions were first executed and for its order execution practices that caused 243 transactions for 17 clients to be executed at the last tradable price, as opposed to the next price. SFC acknowledged the cooperation of GMO-Z.com in assessing its penalty.

©2017 Katten Muchin Rosenman LLP

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