July 16, 2019

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Bridging the Week by Gary DeWaal: March 4 – 8 and March 11, 2019 (Bribing Is Wrong; Smarter Swaps APs Are Better; Commercially Reasonable Prices for EFRPs Are Best)

Unexpectedly, the Commodity Futures Trading Commission announced a new initiative to encourage non-registrants to self-report foreign corrupt practices, which it claimed might also constitute violations of laws and rules it administers. Non-registrants who turn themselves in, cooperate with the CFTC and remediate their violations will benefit from a presumption that the CFTC’s Division of Enforcement will ordinarily recommend no fine to the Commission – although it appears likely their situations will be referred to other law enforcement agencies for consideration. Separately, the National Futures Association formally proposed bylaw and rule amendments, as well as a new Interpretive Notice, aimed at making swaps associated persons smarter about swaps markets and applicable regulations. As a result, the following matters are covered in this week’s edition of Bridging the Week:

  • New CFTC Initiative Encourages Non-Registrants to Self-Report Foreign Corrupt Practices (includes Legal Weeds);
  • NFA Seeks Smarter Swaps APs Through New Training Requirements (includes Compliance Weeds); 
  • CME Group Warns of Greater Scrutiny for EFRPs With Off-Market Prices (includes Compliance Weeds).

Article Version

Briefly:

  • New CFTC Initiative Encourages Non-Registrants to Self-Report Foreign Corrupt Practices: James McDonald, Director of Enforcement of the Commodity Futures Trading Commission, announced a new initiative aimed at encouraging non-CFTC registrants to voluntarily self-report violations of the Commodity Exchange Act – the principle law overseen by the CFTC – involving foreign corrupt practices.

According to a special Enforcement Advisory, for non-registrants who self-report such violations, fully cooperate with the CFTC, and remediate their violations, the Division of Enforcement will recommended to the Commission a resolution of their wrongdoing “with no civil penalty, absent aggravating circumstances involving the nature of the offender or the seriousness of the offense.”

Mr. McDonald announced the new policy in a speech at the American Bar Association’s National Institute on White Collar Crime. According to the DOE director, acts constituting foreign corrupt practices may also implicate CFTC-administered laws prohibiting fraud, manipulation, false reporting or other offenses. He indicated that the CFTC works closely with the Securities and Exchange Commission and the Department of Justice to ensure that investigations into such matters are “properly coordinated.” Mr. McDonald commented that, to the extent the CFTC brings an enforcement action as part of such coordinated activity, the CFTC will ensure that any fine it requires “appropriately accounts” for any fine by another enforcement body, and if the CFTC insists on disgorgement or restitution, it will give dollar-for-dollar credit for disgorgement or restitution mandated in other related enforcement actions.

It is not clear what prompted Mr. McDonald’s announcement at this time. However, he indicated that the CFTC currently has “open investigations” related to how corrupt practices in any number of forms might impact commodity markets’ prices.

The Foreign Corrupt Practices Act, enacted in 1977 – three years after the authorization of the CFTC in 1974 – makes it illegal for certain persons and entities to make payments to foreign government officials to help obtain or retain business. (Click here for general background on the FCPA in a guide published by the Securities and Exchange Commission and the Department of Justice.)

In November 2016, JPMorgan Chase agreed to settle civil charges brought by the SEC and the Board of Governors of the Federal Reserve System that, between 2006 and 2013, it provided jobs and internships to relatives and friends of Asia-based government officials, including Chinese government officials, to retain or obtain investment banking business. The SEC said this conduct violated the FCPA. (Click here for details in the article“Bank Settles SEC and FRB Charges That It Violated Federal Law by Hiring Relatives and Friends of Asia-Based Government Officials” in the August 23, 2015 edition of Bridging the Week.)

Similarly, in August 2015, The Bank of New York Mellon Corporation agreed to pay sanctions of almost US $15 million to resolve allegations by the SEC that its retention of three interns during 2010 and 2011 constituted violations of the FCPA’s anti-bribery and internal accounting control provisions. The SEC claimed that, in order to maintain and expand business with an unidentified Middle Eastern sovereign wealth fund, BNY agreed to retain three family members of two government officials who were both senior officials affiliated with the sovereign wealth fund. None of the interns, claimed the SEC, met the “rigorous criteria” of the internship program ordinarily administered by BNY. (Click here for more information in the article “Student Internships Result in Bank’s Settlement With SEC Over Alleged FCPA Violations” in the August 23, 2015 edition of Bridging the Week.)

Legal Weeds: In January 2017, the CFTC’s DOE updated a 2007 advisory (click here to access) to clarify the type of cooperation it would consider to recommend reduced charges or sanctions against a company or an individual in connection with an enforcement investigation or action. In general, the Division said it will look “for more than ordinary cooperation or mere compliance with the requirements of law.” In evaluating this, the Division noted three factors it would consider: (1) whether the cooperation resulted in “material assistance” to the Commission’s investigation and enforcement action, including its success, considering the timeliness, nature and quality of the cooperation; (2) whether the cooperation encouraged “high quality” assistance from other persons considering the significance and harm of the relevant type of misconduct and CFTC resources conserved as a result of the help; and (3) the subject’s culpability, and in the case of a company, its culture and other relevant factors. (Click here for more background in the article “Cooperate and Maybe Benefit Says CFTC Division of Enforcement” in the January 29, 2017 edition of Bridging the Week.)

Later in the same year, Mr. McDonald said that potential wrongdoers who voluntarily self-report their violations, fully cooperate in any subsequent CFTC investigation, and fix the cause of their wrongdoing to prevent a reoccurrence will receive “substantial benefits” in the form of significantly lesser sanctions in any enforcement proceeding and “in truly extraordinary circumstances,” no prosecution at all. (Click here for background in the article “New Math: Come Forward + Come Clean + Remediate = Substantial Settlement Benefits Says CFTC Enforcement Chief” in the October 1, 2017 edition of Bridging the Week.) Contemporaneously with his speech, the CFTC’s DOE released a formal Updated Advisory on Self Reporting and Full Cooperation that memorialized and expanded the elements of Mr. McDonald’s presentation (click here to access).

Last year, the CFTC determined not to bring an enforcement action at all against Deutsche Bank after the Commission brought and settled charges against a trader for the bank for purportedly mismarking his swap trading portfolio to disguise trading losses. The CFTC said it determined not to bring an enforcement action against Deutsche Bank in connection with this matter because of its “timely, voluntary self-disclosure” of the incident, full cooperation, and “proactive remediation efforts." (Click here for more in the article ”Ex-Bank Trader Fined US $350,000 and Banned From All CFTC Overseen Markets for Allegedly Concealing Swaps Trading Losses; Bank That Self-Reported, Cooperated and Remediated Receives Letter Closing Investigation” in the November 11, 2018 edition of Bridging the Week.)

The current initiative announced by the CFTC to encourage self-reporting of FCPA-related violations appears to be an extension of the agency’s prior efforts to encourage self-reporting of other violations of applicable law and CFTC rules. I will be curious to see if an enforcement action is announced imminently that sheds light on the unexpected timing of this announcement and initiative.

  • NFA Seeks Smarter Swaps APs Through New Training Requirements: The National Futures Association proposed an amended bylaw and rule, as well as a new Interpretive Notice, requiring that all associated persons of futures commission merchants, introducing brokers, commodity pool operators and commodity trading advisors acting as swaps firms, as well as persons designated as APs at swap dealers and major swap participants, to satisfy certain minimum proficiency requirements related to swaps. (Persons acting as APs of swaps dealers and MSPs are not required to be registered as such.) 

Under NFA’s proposed new rules, beginning February 1, 2021, all existing and new APs at swaps firm intermediaries or persons designated as APs at swap dealers must satisfy either a “Long Track” or “Short Track” proficiency requirement depending on their job function. The proficiency requirements will test individuals’ swaps market knowledge as well as familiarity with regulatory requirements.

Persons designated as APs in a swap dealer’s sale and trading areas who negotiate, price and/or execute swaps with counterparties and/or are responsible for managing the swap dealer’s swaps-related risks must satisfy Long Track requirements, as must persons designated as APs who supervise such persons. Other persons at swap dealers designated as APs as well as persons designated as APs who are their supervisors, and swap APs and their supervisors at swaps firm intermediaries, may satisfy either the Long or Short Track requirements.

Since there are no registration requirements for persons designated as APs at swap dealers, such entities must maintain records that evidence relevant individuals have timely satisfied requisite proficiency requirements. A person will not be approved as a swap AP of a swaps firm intermediary unless NFA receives evidence he/she has timely taken and passed a proficiency requirement. An individual who has satisfied a swaps proficiency requirement while at one firm is not required to re-satisfy such requirement after he/she joins a new swaps firm intermediary or swap dealer, provided that the start date occurs within two years after the last date of employment at the prior firm and his/her new role doesn't require Long Track proficiency and he/she only has Short Track proficiency.

Individuals acting as APs of swap dealers outside the United States who solely accept or solicit swaps with non-US counterparties or non-US branch offices of US swap dealers do not have to satisfy NFA’s new proficiency requirements.

NFA anticipates posting subject matter topics on its Long and Short Track proficiency requirements as well as relevant frequently asked questions on its website. 

Often, the NFA's proposed proficiency requirements do not address persons designated as APs at MSPs; this is because NFA does not currently have any MSP members. However, according to an NFA official, if necessary in the future, the proficiency requirements would be amended to be parallel for persons designated as APs at MSPs as for persons designated as APs at swap dealers.

Compliance Weeds: All CFTC-registered APs and any natural person registered as an FCM, IB, CPO, CTA, floor broker or floor trader are required to receive ethics training on a periodic basis, as needed. Registered entities must have written procedures that describe the frequency and form of training. The frequency and form should be based on the size and type of a firm’s business. One size is not expected to fit all. Topics to be addressed should include an overview of applicable laws and CFTC rules, as well as relevant rules of applicable self-regulatory organizations that oversee the firm; the registrant’s duty to observe just and equitable principles of trade; how to act honestly and fairly with due care in the interest of customers and for the integrity of the market; how to maintain an effective supervisory system and internal controls; how to assess the financial circumstance and investment experience of customers; disclosure of material information to customers; and avoidance and disclosure of conflicts of interests, among other topics. (Click here for additional information in the CFTC’s 2001 Statement of Acceptable Practices With Respect to Ethics Training and here for NFA Compliance Rule 2 -9: Ethics Training Requirements.)

  • CME Group Warns of Greater Scrutiny for EFRPs With Off-Market Prices: CME Group proposed amendments to its Market Regulation Advisory Notice related to Exchange for Related Positions that make clear that off-market prices for EFRPs must be for legitimate purposes and are more likely to be subject to regulatory scrutiny. Generally, EFRPs may be transacted at ”such commercially reasonable prices” as agreed by the parties, provided such prices conform to the applicable futures or option price increments.

The amended MRAN also adds a new Q/A to clarify that third-party systems accessible to multiple parties that allow for electronic matching or electronic acceptance of bids or offers for EFRPs are prohibited. However, parties may use communication technologies to bilaterally request EFRP quotes from one or more participants and to facilitate privately negotiated EFRPs.

CME Group’s revised MRAN is scheduled to be effective March 19.

Compliance Weeds: All EFRP transactions must involve the bona fide transfer of the cash commodity underlying the exchange contract, or a by-product, related product or an over-the-counter instrument. A liquidation of the related position that occurs simultaneously or close-in-time without the parties incurring market risk will likely cause the EFRP to be deemed a prohibited transitory EFRP. 

CME Group will also regard an EFRP as transitory if two EFRPs involving economically equivalent futures positions traded on a CME Group and another exchange result in the related position component being offset between the same parties. Structuring a swap so that it settles through an Exchange for Risk Transaction is not considered to be entering into a transitory EFRP, provided the settlement value (floating price) is subject to material market risk. Immediately offsetting exchange of futures for physical positions involving foreign currency positions are not considered transitory EFRPs if executed in accordance with CME Group rule. Click here to access CME Group Rule 538.K; click here for the currently in place EFRP MRAN Q/A 26.) ICE Futures U.S. has equivalent prohibitions, although it also permits immediately offsetting EFP transactions involving physical delivery obligations by participants in the London Gold Auction administered by the ICE Benchmark Administration. (Click here to access ICE Futures U.S. FAQs – November 20, 2017, Q/A22.

Although EFRPs may be conducted between different trading units within one corporate group or even within one company, they must be for units under independent control and not to transfer positions from one trading operation to another.

More Briefly:

  • Broker-Dealer Fined US $2 Million by FINRA for Purported Five-Year Reg SHO and Supervision Breakdowns: Cantor Fitzgerald & Co. – a Securities and Exchange Commission-registered broker-dealer – agreed to pay a fine of US $2 million to the Financial Industry Regulatory Authority to settle allegations that, from January 2013 through at least December 2017, it purportedly failed to comply with certain aspects of the SEC’s Regulation SHO, and failed to have and follow written supervisory procedures reasonably designed to detect such failures. FINRA claimed that the firm’s reliance predominately on manual short sale compliance systems was unreasonable given that its trading activity more than doubled from 35 billion shares in 2013 to 79 billion shares in 2014. In its investigation, FINRA found that Cantor failed to close out “fail-to-deliver” short sale positions in a timely manner; in connection with fail-to-deliver securities, failed to borrow first or arrange to borrow securities before executing new short sale orders; failed to provide notice to other broker-dealers of short sale trades that were in violation of applicable law; and failed to supervise short sales trades to meet applicable requirements. Moreover, said FINRA, the firm failed to act on red flags of relevant failures identified by its compliance personnel. In addition to the monetary fine, Cantor agreed to retain an independent consultant to complete a review of the firm’s short sales policies, systems and training related to Reg SHO. Cantor agreed to the FINRA settlement without admitting or denying any findings. (Click here for background regarding Reg SHO in an SEC publication Key Points About Regulation SHO.)
     
  • CFTC Chairman Praises Markets as Best Evaluator of Technology-Driven Innovation: In a speech before the Fourth Annual DC Blockchain Summit, J. Christopher Giancarlo, Chairman of the Commodity Futures Trading Commission, indicated that the CFTC has taken affirmative steps to transform into a “21st century regulator and craft a modern regulatory approach.” Critical to this evolution, he said, were four elements: (1) adopting an “exponential growth mindset” which he said was marked by anticipating the rapid pace of change or, colloquially, “skating where the puck is headed”; (2) forming a fintech stakeholder (i.e., LabCFTC); (3) becoming a quantitative regulator engaging in “robust” data collection and analysis; and (4) welcoming market-based solutions. He said a modern regulatory approach was necessary because of the current exponential technological growth, disintermediation of traditional business models and heightened need for technological literacy. Mr. Giancarlo indicated that markets are “the best determinate of the value of technology-driven innovation.” He defended, for example, the CFTC’s allowance for the self-certification of bitcoin futures contracts at the end of 2017, arguing that “risk transfer markets comprised of sophisticated institutional investors were in the best place to make individual determinations regarding the value of Bitcoin and the need to offset price or volatility risk.”

In other legal and regulatory matters involving cryptoassets:

  • Consumers Confused by Cryptoassets According to UK FCA Commissioned Research: The UK Financial Conduct Authority published two surveys of consumers conducted by third parties to explore consumer knowledge of and motivation to purchase and use cryptoassets. According to the research, the majority of contacted consumers entered the cryptoasset market without doing any research. As a result, most surveyed consumers did not understand virtual currency. Some believed that cryptocurrency coins were tangible assets because of references to “mining” and “coin.” The research indicated that when consumers invested in cryptoassets they predominantly did so to get rich quickly or not to miss out on something. However, the survey reported that only 3 percent of consumers actually bought cryptoassets. As a result of these surveys, FCA stated that it believes that it may have overestimated the “scale of harm” cryptoassets may pose to consumers. 
  • Leader of Alleged Worldwide Cryptocurrency Pyramid Scheme Arrested in Los Angeles: Konstantin Ignatov, the purported ringleader of an alleged global, fraudulent cryptocurrency enterprise based in Sophia, Bulgaria – OneCoin Ltd. – was arrested in Los Angeles contemporaneously with the unsealing of an indictment against him and Ruja Ignatova, his sister, both from Bulgaria, and Mark Scott, a resident of Florida. According to the indictments, Mr. Ignatov and Ms. Ignatova helped support the company and coordinated marketing of its purportedly fake cryptocurrency, OneCoin. The company sought new investors through operation of a pyramid scheme where member-investors were compensated for signing up new member-investors, claimed the indictments. However, charged the indictments, OneCoin never existed as a virtual currency on any public and verifiable blockchain and the multi-level marketing operation run by the company was fraudulent. The company allegedly generated € 3.353 billion (approximately US $3.765 billion) from the fourth quarter of 2014 through the third quarter of 2016. Mr. Scott, along with Ms. Ignatova, helped to launder the proceeds of the alleged pyramid scheme, claimed the indictments. The indictments were filed in a federal court in New York City.
  • Justice Department Asks CFTC to Hold Off Discovery in Cryptocurrency Purported Fraud Case Pending Resolution of Parallel Criminal Action: The Department of Justice filed a motion in a federal court in Massachusetts to delay discovery in the CFTC's civil case against defendants, Randall Carter, Mark Gillespie, and My Big Coin, Inc. for allegedly engaging in a fraudulent virtual currency scheme until DOJ’s criminal case against Mr. Carter based on the same essential facts is resolved. According to DOJ, the stay is warranted because the civil and criminal cases share almost identical facts and it is in the public’s best interest to delay the civil trial so that the defendant cannot “abuse civil discovery to circumvent the criminal rules.” According to DOJ, the parties in the CFTC action did not oppose the agency’s request. (Click here for details in the article “Purported Cryptocurrency Fraudster Indicted for Fraud; Previously Sued by CFTC” in the March 3, 2019 edition of Bridging the Week.) 
  • NYMEX and COMEX Permanently Bans 12 Nonmembers From All CME Group Exchanges’ Access for Multiple Trading Offenses and Non-Participation in Disciplinary Processes: Fourteen nonmembers were sanctioned by the Commodity Exchange, Inc. and the New York Mercantile Exchange for engaging in different trading violations such as prearranged, prenegotiated and noncompetitive trades; wash trades; TAG50 ID violations; and spoofing-type conduct. All were also charged with not participating in exchange disciplinary actions. All but two of the respondents were permanently barred from any CME Group exchange trading while four of the respondents were also fined from US $50,000 to US $200,000. The respondents were Kai Kai Hu, Zhuang Lirui, Miao Liu, Ma Qiang, Sharp Link Developments LTD., Jeong Hye Soo, Lim Young Sun, Daguo Wang, Liu Wang, Yu Yang, Cheng Zenglin, Qi Zhaomin, Cui Zhiming, and Chengdao Zhou. 

Separately, FCT Strategy Trading Limited settled charges brought by the Chicago Mercantile Exchange that, from January 2015 to July 2015, the firm’s traders entered spread futures orders on Globex for Lean Hogs, Feeder Cattle and Live Cattle prior to market opening with the intent to ascertain the depth of the order book and not to enter into bona fide transactions. CME claimed that, as a result of these non bona fide transactions, fluctuations in the publicly displayed Indicative Opening Price occurred. Furthermore, CME alleged that FCT, a nonmember, did not sufficiently train or supervise its traders to prevent the prohibited trading scheme. FCT agreed to a fine of US $75,000 to resolve this matter and performed remedial measures and training following this episode. FCT neither admitted nor denied the charges.

Alan Fraczek also resolved CME charges for entering and cancelling orders for Live Cattle, Lean Hog and Feeder Cattle spread markets on the Globex electronic trading platform during the pre-opening period between May 1, 2017, and December 8, 2017, for non bona fide purposes. CME claimed that these prohibited orders – also purportedly placed to assess depth of market – resulted in fluctuations in the publicly displayed Indicative Opening Price. Mr. Fraczek, who was a nonmember too, was fined US $20,000 and suspended for ten business days from all CME Group trading exchanges.

Element Capital Management LLC settled charges with the Chicago Board of Trade by submitting to a fine of US $15,000 and a disgorgement of US $86,365 for a position limit violation. According to CBOT, at the end of the trading day on August 9, 2018, the firm was 141 contracts over the single and all month limit of 8,000 contracts for 2018 Soybean Oil futures contracts The next trading day, not realizing its mistake, ECM increased its position resulting in a total of 294 contracts over the required limit. CBOT stated that the firm immediately eliminated the overage after realizing its mistake, achieving a profit of $86,365. ECM neither admitted nor denied the charges.

  • National Security Agency Gives Away FreeCybersecurity Tools to Help Analyze Malicious Code and Malware: The National Security Agency is providing for free reverse engineering tools to assist cybersecurity professionals analyze malicious code and software such as viruses. Named “Ghidra,” the collection of NSA open source software tools is designed to better enable cybersecurity professionals to understand how identified malware works and what damage it can do.
     
  • Exchange Sues SEC Over Non-Response to Freedom of Information Act Request: The New York Stock Exchange filed a complaint against the Securities and Exchange Commission in a federal court in the District of Columbia to force the SEC to comply with the exchange’s request for documents related to the SEC’s determination in August 2018 that fees set by two national securities exchanges for depth of book market data were not “fair and reasonable” and “not unreasonable discriminatory,” as required under applicable law; another SEC determination in October 2018 that challenged over 40o exchanges’ rule changes as improper limitations or prohibitions of access; and certain other enumerated proceedings (collectively, “Market Data Proceedings”). (Click here for the SEC order related to actions taken by NYSE Arca, Inc. and Nasdaq Stock Market LLC; click here for the SEC order for a review of actions taken by various national securities exchanges in their role as registered securities information processors.) The exchange initially made a request under the Freedom of Information Act on November 19, 2018, for documents related to the involvement of Brett Redfearn, Director of the Division of Trading and Markets, in the SEC’s Market Data Proceedings, including information related to his recusal or potential recusal from the proceedings, as well as meetings between the SEC and Mr. Redman and The Wall Street Journal. (According to his LinkedIn site, prior to joining the SEC in November 2017, Mr. Redman was Head of Market Structure, Global Markets, at JP Morgan (click here for details).) The Exchange claimed the SEC unlawfully delayed its response beyond time periods permitted by law which, under law, is tantamount to a rejection of the exchange’s request.

Follow-up:

  • Not Just Spoofing, Not Just CME Group Exchanges and ICE Futures U.S.: Two Weeks ago in the Compliance Weeds section addendum to the article, "Government Argues New Trial for Convicted Spoofer Not Justified by Data Available Before Trial End" (click here to access) I noted that, "...market participants must pay equal attention to exchanges’ prohibition against persons entering or causing the entry of order messages with the intent to disrupt or with reckless disregard for the consequences of such messages on the orderly trading of a market" and not just on prohibitions against spoofing. In the February 24, 2019 article, I referenced rules of CME Group exchanges and ICE Futures U.S. in support of my recommendation. However, one not-mentioned-exchange thought it would be good if I made clear that my reference to just two exchanges' prohibitions was not a suggestion that other exchanges don't have the same type of prohibitions. They do! (See, for example, ICE Futures Europe Rule E 2.2(a)(xiv): "No Member (or other person subject to the Regulations) shall in relation to Contracts or Corresponding Contracts entered into, or orders placed, on the Market or otherwise in accordance with the Regulations:- ... enter an order or market message or cause an order or market message to be entered with reckless disregard for the adverse impact of the order or market message.")

©2019 Katten Muchin Rosenman LLP

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About this Author

Gary DeWaal, Securities Attorney, Katten Law Firm, New York
Special Counsel

Gary DeWaal focuses his practice on financial services regulatory matters. He counsels clients on the application of evolving regulatory requirements to existing businesses and structuring more effective compliance programs, as well as assists in defending and resolving regulatory disciplinary actions and enforcement matters. Gary also advises buy-side and sell-side clients, as well as trading facilities and clearing houses, on the developing laws and regulations related to cryptocurrencies and digital tokens.

Previously, Gary was a senior...

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