Bridging the Weeks by Gary DeWaal: February 17 to 28, and March 2, 2020 (Sanctioned Again; Spoofing; Denied Again; Bitcoin ETF)
A proprietary trading firm was sanctioned by a sixth futures-industry regulator for purported spoofing trades by one of three employees many years ago. For the employees’ aggregate alleged misconduct, the firm was first penalized by two CME Group exchanges in 2016, by the Commodity Futures Trading Commission and two different CME Group exchanges in 2018, and now again by ICE Futures U.S. Separately, for the seventh time since March 2017, the Securities and Exchange Commission denied approval of an exchange rule to permit trading of a bitcoin-referenced exchange-traded product. The message seems undeniably clear: no means absolutely no when it comes to bitcoin! As a result, the following matters are covered in this week’s edition of Bridging the Week:
Like CME (But Unlike the CFTC), ICE Futures U.S. Sanctions Trading Firm for Purported Spoofing by Ex-Employee Solely by Requiring Disgorgement of Profits ;
SEC Again Denies Listing of Bitcoin-Related ETF; Commissioner Peirce Laments Agency’s Merit Regulation Against Bitcoin ; and more.
Like CME (But Unlike the CFTC), ICE Futures U.S. Sanctions Trading Firm for Purported Spoofing by Ex-Employee Solely by Requiring Disgorgement of Profits: A proprietary trading firm agreed to disgorge profits of approximately $87,000 to resolve a disciplinary action brought by ICE Futures U.S., for the alleged spoofing by one of its employees between June 2015 and May 2016 on Cotton No. 2, Cocoa, Coffee C, and Sugar No. 11 futures markets. The firm was not charged with failure to supervise or required to pay any fine, however; the firm was held liable for being the employer of its trader (i.e., respondent superior). Concurrently, the relevant employee was required to pay US $130,000 and be suspended from access for two weeks from all IFUS trading platforms for his purported spoofing activity that involved layering orders on one side of a market and then cancelling such orders after trading on the opposite side.
In 2018, the same firm agreed to pay a fine of US $1.5 million to the CFTC for the purported spoofing trading by three of its employees – including the same employee fined by IFUS – involving various CME Group exchanges’ futures contracts from January 1 through December 31, 2013, and from June 1, 2015, through October 21, 2016. In parallel actions, Chicago Board of Trade and Chicago Mercantile Exchange business conduct committees also resolved disciplinary actions against the same firm for the alleged spoofing activity from September 1, 2015, through May 23, 2016, by the same employee. The firm agreed to disgorge total profits of US $12,035, but was not required to pay a fine. The employee subject to the current action by IFUS was also subject to disciplinary actions by the two BCCs and resolved his matters by agreeing to pay an aggregate fine of US $75,000 and to be banned from trading on all CME Group markets for six weeks. (Click here for background in the article “CFTC and Exchanges Layer on Multiple Spoofing Cases” in the September 23, 2018 edition of Bridging the Week.)
Unrelatedly, Credit Suisse International and Credit Suisse Securities Europe Limited agreed to pay a fine of US $40,000 to IFUS for allegedly engaging in a block trade to move a position between each other’s account and for reporting the block trade a day late.
Additionally, OTCex LLC agreed to remit a fine of US $10,000 to IFUS for facilitating a wash trade on behalf of the same principal on both sides. A business conduct committee panel of the Chicago Board of Trade likewise assessed a fine of US $60,000 on Bae Jun Seok, a non-member, and permanently barred him from accessing all CME Group markets, for also purportedly utilizing wash trades to engage in money-pass transactions between accounts with common beneficial ownership. Mr. Seok was additionally charged with not producing all records to CBOT as staff requested during an investigation.
Compliance Weeds: In 2016, CME Group exchanges brought and settled disciplinary actions against the same proprietary trading operation subject to the current IFUS matter and two of its employees for engaging in alleged spoofing-type activities on the New York Mercantile Exchange, Inc. and the Commodity Exchange, Inc. To resolve the matter, the proprietary trading firm agreed to disgorge aggregated COMEX and NYMEX trading profits of US $91,241. For the actions of its two traders, the firms was charged by the CME Group exchanges with violating just and equitable principles of trades and related violations, but solely on a strict liability basis. The firm was not charged with failure to supervise, and it was not assessed a fine. The CME Group exchanges implied that no fine was assessed because the firm had and enforced robust policies and procedures regarding the purported wrongful conduct of its employees. (Click here for background in the article “CME Group Settles With Trading Firm for Spoofing-Type Offenses, Holding It Strictly Liable for Acts of Agents; Orders Disgorgement of Profits” in the October 9, 2016 edition of Bridging the Week.)
Early this year, IFUS implemented an amendment to its duty to supervise rule – 4.01 (click here to access) – as well as guidance expressly mandating that all firms accessing the exchange must develop, implement and enforce supervisory systems, policies and procedures reasonably designed to effectuate compliance with exchange rules. These measures are not intended to be one-size-fits-all, but rather based on the “nature and size” of the firm’s activities on IFUS. Moreover, in addition to taking steps regarding procedures, firms accessing IFUS are expected to periodically train staff regarding IFUS rules and rule changes; regularly monitor employees and agents for exchange rule compliance; investigate “apparent issues”; and take appropriate measures when noncompliance is identified. (Click here for background in the article “ICE Futures U.S. Proposes Formal Requirements of Supervision and Ancillary Guidance” in the December 15, 2019 edition of Bridging the Week.)
All firms accessing any US designated contract market should ensure they have and enforce robust supervisory procedures consistent with IFUS’s expressly enumerated requirements whether the exchange has parallel detailed requirements or not. This is because all US exchanges have a general duty of supervision, and their obligations apply to all market participants, whether members or not. (Click here, e.g., to access Cboe Futures Exchange’s duty of supervision obligation, Rule 609(b).) Should a rogue employee or agent violate exchange rules that were covered in the firm’s procedures and training, detected by firm surveillance and remediated, the firm could potentially escape an exchange fine if subject to an exchange disciplinary action – although likely it still would have to disgorge profits. Unfortunately, the CFTC likely would not be so rewarding of the firm’s efforts.
SEC Again Denies Listing of Bitcoin-Related ETF; Commissioner Peirce Laments Agency’s Merit Regulation Against Bitcoin: Over the vehement dissent of one of its commissioners – Hester Peirce – the Securities and Exchange Commission again declined to approve an exchange’s proposed rule change to accommodate the listing and trading of shares of a bitcoin-related trust. Specifically, the SEC disapproved a rule change by NYSE Arca, Inc. to list and trade shares of the United States Bitcoin and Treasury Investment Trust sponsored by Wilshire Phoenix Funds, LLC. The SEC said disapproval was warranted as NYSE Arca did not meet its statutory obligation to demonstrate that its proposed rule amendment was “designed to prevent fraudulent and manipulative acts and practices” and “to protect investors and the public interest.” (Click here to access 15 U.S.C. § 78f(b)(5).)
The Trust proposed principally to hold short-term US Treasury Securities and bitcoin. Its investment objective was to mimic the Bitcoin Treasury Index – an index published by Solactive AG each business day at 5 p.m. which contains two components – one based on bitcoin and the other on T-Bills. Prices of bitcoin in the Trust Index are, and prices of bitcoin held by the Trust were proposed to be, based on the Bitcoin Reference Rate computed for the Chicago Mercantile Exchange derived from bitcoin prices of five constituent spot exchanges: Bitstamp, Coinbase, Gemini, itBit and Kraken. (Click here for details.) CME utilizes the BRR to ultimately settle its own bitcoin futures contract. (Click here for CME contract specifications and related information.)
The SEC said that, among other things, to satisfy applicable statutory requirements as interpreted in its prior orders, NYSE Arca had to demonstrate that the portion of the spot market represented by the BRR was “uniquely and inherently resistant to manipulation” and that it had a surveillance-sharing agreement with a “regulated bitcoin market of significant size.” The SEC claimed that NYSE Arca failed to meet these requirements.
The SEC posited that the level of regulation of the five spot markets did not make their segment of the bitcoin market uniquely invulnerable to fraud and manipulation and that the five spot markets did not constitute a sufficiently supervised market such that NYSE Arca entered into a surveillance sharing agreement “with a regulated market of significant size with respect to bitcoin.” The SEC said the level of its oversight over national securities exchanges was not matched by the combination of potential FinCEN and states’ oversight over the five spot markets or the CFTC’s limited jurisdiction over spot commodities such as bitcoin.
In her dissent, Commissioner Peirce said that this latest disapproval evidences that “this Commission is unwilling to approve the listing of any product that would provide access to the market for bitcoin and that no filing will meet the ever-shifting standards that the Commission insists on applying to bitcoin-related products – and only bitcoin-related products.” While acknowledging that innovation “involves risks,” Ms. Peirce bemoaned the SEC’s application of merit regulation that effectively denies willing investors’ exposure to bitcoin. (Click here to access Ms. Peirce’s dissent.)
The Commission’s Order denying NYSE Arca’s proposed rule amendment was the seventh order of the SEC since March 2017 denying applications by exchanges to amend rules to list and trade bitcoin-related products. (See fn. 2 to Ms. Peirce’s dissent to the current SEC’s Order.) The SEC most recently disapproved rule changes proposed by NYSE Arca, Inc. in October 2019 to list and trade shares of the Bitwise Bitcoin ETF Trust. (Click here for background in the article “New CFTC Chairman Says Ether Derivatives Likely Soon While SEC Says No to Another Bitcoin ETF” in the October 13, 2019 edition of Bridging the Week.)
In other legal or regulatory developments regarding cryptoassets:
Data Technology Startup Agrees to Pay US $500,000 to Settle SEC Action Charging Unregistered Initial Offering: Enigma MPC agreed to pay a US $500,000 fine to the SEC to resolve an enforcement action claiming that an initial coin offering it conducted from June through September 2017 constituted an unregistered securities offering. Enigma MPC, formerly known as Newton Security Labs, Inc., is a privately owned technology start-up company. It engaged in its ICO to raise funds to develop a digital asset trading-testing platform and to create a data marketplace for virtual currency-related data, alleged the SEC. During the relevant time, it marketed its ICO to 6,000 persons, raising the equivalent of US $45 million. At the time its digital coins – ENG Tokens – were provided to investors in October 2017, they had no consumptive use as a medium of exchange or for any Enigma products, said the SEC. As part of its settlement, Enigma MPC agreed to set up a claims process so that all initial investors could receive back the amount of their initial investments and register its ENG tokens as securities. The SEC did not claim that Enigma MPC engaged in any fraud in connection with its ICO.
In November 2018, the SEC filed and settled two enforcement actions against issuers of ICOs – Carrier EQ Inc. d/b/a/ AirFox and Paragon Coin, Inc. – for violating securities registration requirements. These cases represented the first time the SEC assessed fines in connection with a non-fraudulent ICO. (Click here for background in the article “SEC Assesses Penalties for Non-Fraudulent Initial Coin Offerings and Requires Registration; Issues Advisory on Issuance and Trading of Cryptosecurities” in the November 18, 2018 edition of Bridging the Week.)
Not Even Much to Do About Nothing – CFTC’s Legal Division Expresses No View on Digital Asset Subject to SEC Enforcement Action: Two weeks ago, the Commodity Futures Trading Commission responded to an invitation by the Hon. P. Kevin Castel to “express its views” on issues currently being considered by a US federal court in New York in connection with the SEC’s enforcement action against Telegraph Group Inc. and Ton Issuer Inc. The CFTC filed a three-page letter broadly noting that many securities are commodities under applicable law subject to securities laws. In such cases, the SEC has jurisdiction over such products. However, the CFTC expressed no view on the applicability of securities laws to Gram digital tokens issued by the SEC defendants. The Hon. Judge Castel is presiding over this matter in a US federal court in New York City. (Click here for further background in the My View section of the article “IOSCO Suggests Key Considerations for International Regulators With Oversight Over Cryptoasset Trading Platforms “ in the February 16, 2020 edition of Bridging the Week.)
Lights, Camera, Action and Consequences!; Famed Actor Sanctioned by SEC for Alleged Unlawful Touting of Unregistered ICO: Actor Steven Segal agreed to disgorge earnings of US $157,000 and to pay a fine of US $157,000 to the SEC to resolve charges that from February 12 through March 6, 2018, he publicly hyped securities offered through an initial coin offering, without disclosing that he was compensated for the promotion. The ICO for B2G digital tokens was conducted by Bitcoin2Gen. Publicly promoting securities without identifying compensation received from or promised by an issuer is prohibited under applicable law. (Click here to access 15 U.S.C. § 77q(b).) In 2018, two other celebrities, Floyd Mayweather, Jr. and Khaled Khaled, were also named in SEC enforcement actions for publicly endorsing ICOs of cryptocurrencies that the Commission claimed were securities without disclosing they were paid for their endorsements. Mr. Mayweather agreed to pay over $610,000, including a fine and disgorgement, to resolve his SEC matter, while Mr. Khaled agreed to remit over US $150,000. (Click here for background in the article “Boxer and Singer Rapped by SEC for Promoting ICOs Without Disclosing Personal Compensation Arrangements” in the December 2, 2018 edition of Bridging the Week.)
My View: In July 2018, the SEC disapproved a proposed rule change by the Bats BZX Exchange, Inc. to permit its listing and trading of shares of the Winklevoss Bitcoin Trust. Commissioner Peirce dissented from the Commission’s determination. She claimed that BZX’s proposed rule change “satisfies the statutory standard” and that the SEC’s refusal to approve the rule “sends a strong signal that innovation in unwelcome in our markets, a signal that may have effects far beyond the fate of bitcoin [exchange-traded product].”
Commissioner Peirce’s dissent was spot-on then, and applies equally to the Commission’s rejection last week of NYSE Arca’s proposal to list and trade shares of the United States Bitcoin and Treasury Investment Trust. There is no language in the relevant statute that appears to require NYSE Arca to address trading in spot bitcoin, as opposed to the exchange-traded product it proposed to accommodate, in a defense of its rules intended to preclude fraudulent and manipulative conduct. The language of the relevant statute is clear:
An exchange shall not be registered as a national securities exchange unless the Commission determines that
(5) The rules of the exchange are designed to prevent fraudulent and manipulative acts and practices, to promote just and equitable principles of trade, to foster cooperation and coordination with persons engaged in regulating, clearing settling, processing information with respect to, and facilitating transactions in securities, to remove impediments to and perfect the mechanisms of a free and open market and a national market system, and, in general, to protect investors and the public interest.
(Emphasis added; see 15 U.S.C. § 78f(b)(5).)
Nothing in this provision suggests that an exchange must address the potential for fraud or manipulation on another exchange or trading facility, let alone in the spot market, in order for its rules related to the listing of a specific security to be approved by the SEC.
According to Ms. Peirce, BZX more than adequately met its requirement under the plain language of the law, and there was no suggestion in the NYSE Arca order that the exchange had failed to meet its burden either. (Click here to access the Dissent of Commissioner Peirce to Release No. 34-83723; File No. SR-BatsBZX-2016-30, July 26, 2019.)
Moreover, the SEC’s rejection of FinCEN’s and states’ oversight of exchanges through their licensing regimes seems disrespectful if not demeaning. Comparable does not mean equal, and although FinCEN and the states may not impose all the same obligations on regulated virtual currency exchanges as the SEC does on national securities exchanges, that is not a sufficient basis for concluding the oversight is not comparable. The SEC’s additional disregard of the CFTC’s anti-manipulation authority over commodity spot markets is also troublesome.
No matter what the words of the SEC are to the contrary, as Ms. Peirce points out in her current dissent, the Commission’s continued refusal to approve the listing of a bitcoin ETP appears as a clear vote against new technology.
FINRA Probes Zero Commissions at Broker-Dealers: The Financial Industry Regulatory Authority published a targeted examination letter it has apparently issued to broker-dealers which it has identified as no longer charging commissions for customer transactions. The letter requests answers to 26 questions, seeking to determine, among other things, whether the registrant assesses fees, expenses or other costs, exclusive of commissions, on customer accounts; if yes, an identification of the fees and means of disclosure to customers; and if the firm passes along to customers payments received for order flow. FINRA also seeks documents pertaining to analyses and committee meeting agendas and minutes pertaining to the firm’s reasonable diligence to determine the best market for orders the firm routed to achieve best execution and copies of policies and procedures related to payment for order flow, among other materials.
Cboe EDGA Exchange Speed Bumps Proposal Bumped Off Track by SEC: The Securities and Exchange Commission declined to approve a proposal by Cboe EDGA Exchange, Inc. to implement a liquidity provider protection mechanism that would have delayed by up to four milliseconds all incoming executable orders that would have removed liquidity from the EDGA order book. The SEC claimed that Cboe EDGA’s speed bump proposal was not consistent with legal requirements that “the rules of a national securities exchange be designed to remove impediments to and perfect the mechanism of a free and open market and national market system, to promote just and equitable principles of trade.” Last year, the Commodity Futures Trading Commission did not disapprove a rule amendment by ICE Futures U.S. authorizing the exchange to implement delays or “speed bumps” in the time between when new aggressor orders might otherwise execute against resting passive orders. (Click here for background in the article “CFTC Staff Declines to Halt Rollout of ICE Futures U.S. Speed Bumps; Two Commissioners Raise Concerns” in the May 19, 2019 edition of Bridging the Week.)
CFTC Proposes Rules Amendments to Improve Swap Data Quality and Ease Swaps Reporting: Two weeks ago, the Commodity Futures Trading Commission proposed two sets of rules that would, if adopted, impact the reporting of swaps trading data, and reopened the comment period for a previously proposed rule that, if enacted, would amend requirements of swap data repositories related to swaps trading data. Among other things, the Commission’s proposed amendments generally would keep in place the agency’s “as soon as technologically possible” reporting standard for most real-time reporting obligations, but would authorize a two-day public dissemination window for block trades executed subject to a designated contract market’s or swap execution facility’s rules from the current 15 minutes. The proposals would also provide more time for reporting counterparties to report trades to an SDR: by T+1 for swap dealer and derivatives clearing organization reporting parties to T+2 for other parties; the intent is to help ensure more accurate information is reported in the first place that does not need correction later. The proposals would also implement more standardized fields for reporting to conform to international standards. According to CFTC Chairman Heath Tarbert, “[t]he proposals simplify the swap data reporting process to ensure that market participants are not burdened with unclear or duplicative reporting obligations that do little to reduce market risk or facilitate price discovery.” (Click here to access Chairman Tarbert’s full statement.)
ICE Futures Europe Issues Revised Self-Match Policy and FAQs: ICE Futures Europe updated its self-trade prevention policy and issued a corresponding, revised guidance. As with ICE Futures U.S., use of ICE Futures Europe’s self-trade prevention functionality is mandatory at the authorized trader ID level for all proprietary traders with direct market access utilizing algorithmic trading applications in order to avoid inadvertent wash trades. (Click here to access ICE Futures U.S. STP functionality policy.) ICE exchanges propose to extend at an unspecified later time mandatory use of STPF at Authorized Trader ID level to embrace all proprietary traders and commercial/merchant entities other than those which trade for customer/client accounts. Self-match prevention technology is available for CME Group exchanges but is not mandatory. (Click here to access relevant guidance.) Self-match prevention technology automatically ensures that a new incoming bid/offer does not offset a resting bid/offer. Subject to the election of outcomes, if such situation arises, the incoming order, the resting order or (on ICE exchanges only) both orders may be cancelled.
Cboe Futures Exchange Revises Rule to Join Exchanges’ Uniform March to Expand Jurisdiction: Cboe Futures Exchange proposed amendments to an existing rule to subject to its express jurisdiction all intermediaries that charge a commission or fee in connection with a transaction on or subject to the rules of one or more of its exchanges. CFE’s amended provision would potentially apply to all non-member futures commission merchants, introducing brokers, associated persons or foreign persons performing similar functions in the chain of a CFE transaction. This amended provision replaces a previously existing, broader equivalent CFE provision. The proposed amendments were scheduled to be effective March 2. CME Group and ICE Futures U.S. recently adopted the same rule amendment. (Click here for background in the article “ICE Futures U.S. Proposes to Extend Jurisdiction Too” in the January 26, 2020 edition of Bridging the Week.)
Related Broker-Dealers Agree to Reimburse Clients US $35 Million for Unsuitable Recommendations to Settle SEC Enforcement Action: Wells Fargo Clearing Services and Wells Fargo Advisors Financial Network – both dual registered investment advisers and broker-dealers – agreed to pay a collective US $35 million penalty to the Securities and Exchange Commission related to their recommendation and sale of inverse exchange-traded funds to certain customers from April 2012 through September 2019. According to the SEC, these funds were sold by investment adviser representatives and registered representatives to some investors who were unfamiliar with the ETF’s unusual characteristics – and thus were unsuitable – and who were not adequately trained on such products. Inverse ETFs, said the SEC, are “complex financial instruments” that seek results that are opposite to the performance of an index for a designated time period – generally a single day. When held long-term, these ETFs could generate large and unexpected losses. The Financial Industry Regulatory Authority issued a regulatory notice warning members of the unusual characteristic of inverse ETFs in 2009 and alerting them of their obligation to ensure that customers fully understand such products’ terms and features. (Click here to access the regulatory notice.) The SEC charged that Wells Fargo’s policies and procedures were not reasonably designed to prevent and detect unsuitable recommendations of single-inverse ETFs, and did not mandate training for its financial advisers and supervisors. Wells Fargo’s penalty is intended to reimburse clients adversely impacted by their purchase of inverse-ETFs.
For further information:
Cboe EDGA Exchange Speed Bumps Proposal Bumped Off Track by SEC:
CFTC Proposes Rules Amendments to Improve Swap Data Quality and Ease Swaps Reporting:
Real-Time Public Reporting:
Swap Data Recordkeeping and Reporting:
Data Technology Startup Agrees to Pay US $500,000 to Settle SEC Action Charging Unregistered Initial Offering:
FINRA Probes Zero Commissions at Broker-Dealers
Not Even Much to Do About Nothing – CFTC’s Legal Division Expresses No View on Digital Asset Subject to SEC Enforcement Action:
Lights, Camera, Action and Consequences!; Famed Actor Sanctioned by SEC for Alleged Unlawful Touting of Unregistered ICO:
ICE Futures Europe Issues Revised Self-Match Policy and FAQs:
Like CME (But Unlike the CFTC), ICE Futures U.S. Sanctions Trading Firm for Purported Spoofing by Ex-Employee Solely by Requiring Disgorgement of Profits:
ICE Futures U.S.:
Related Broker-Dealers Agree to Reimburse Clients US $35 Million for Unsuitable Recommendations to Settle SEC Enforcement Action:
SEC Again Denies Listing of Bitcoin-Related ETF; Commissioner Peirce Laments Agency’s Merit Regulation Against Bitcoin: