The necessity to comply precisely with US exchange requirements regarding Exchange of Futures for Related Positions and Block Trades was highlighted last week through disciplinary actions brought by the CME and ICE Futures. Also, a UK Financial Conduct Authority enforcement action suggests the need to consider carefully the impact of not telling one regulator about a material enforcement investigation or action being undertaken by another regulator regarding an affiliate even when the affiliate may be outside the same country. As a result, the following stories are covered on this week’s Gary DeWaal’s Bridging the Week:
The UK Financial Conduct Authority fined FX dealers Forex Capital Markets Ltd and FXCM Securities Ltd. UK (collectively, FXCM UK) £4 Million (US $6.7 Million) for permitting a US affiliated company not to forward trading profits that should have been paid to FXCM UK’s customers. Previously, in 2011, both the US Commodity Futures Trading Commission and the National Futures Association imposed fines against Forex Capital Markets LLC of US $8 Million combined mainly because the firm had failed to credit customers for certain beneficial price moves, but had debited them for detrimental price movements. According to FCA, FXCM UK failed to provide to its customers approximately £6 Million (almost US $10 Million) of profits kept by its US affiliate. As part of its settlement with FCA, FCM UK agreed to reimburse its customers up to almost US $10 Million. Previously, FXCM Group reimbursed their US customers over US $8 Million. In addition, to this significant sanction by the FCA, the FCA also cited FXCM UK for failing “…to be sufficiently open and co-operative and disclose to the Authority information of which it would reasonably expect notice,” specifically information regarding the investigations by and settlements with the CFTC and NFA in 2010 and 2011. The losses by FXCM’s customers were sustained because of “asymmetric price slippage” that occurred between the time a customer’s order was placed and the time it was executed. The detrimental impact for customers on individual trades was very small, however, on average US $3.70. FXCM UK itself (unlike the US affiliate) did not retain any gains from favorable price movements. FXCM’s violations occurred from 2006 through 2010, after which the FXCM Group corrected its practices.
Compliance Weeds: This FCA enforcement action demonstrates how, at least one regulator may find it a violation of its rules if a registrant does not disclose to it certain material matters involving an affiliated firm outside the regulator’s jurisdiction. Even if no specific enforcement action emanates, regulators typically are not happy to learn from media reports or other third parties (including from other regulators) of material events involving companies affiliated with a company within their jurisdiction. As a result, companies should assess when an event within a group structure is material and whether it should be disclosed to regulators of affiliated companies – even if such regulators have no jurisdiction over the entity, particularly where a material adverse development has occurred or a major corporate structure change may be pending or also has happened.
Previously, the SEC complained that JP Morgan failed to file Suspicious Activity Reports in the US as it had done in the UK related to conduct in accounts related to Bernard Madoff (see article “JP Morgan Criminally Charged” at http://www.garydewaalandassociates.com/?p=1769). This is a variation of the theme, but also suggests that regulators in different jurisdictions do not like to see different behavior among related companies dealing with the same essential conduct – where behavior outside the jurisdiction is deemed appropriate, but the same behavior is not taken within the jurisdiction.
In the US, the Commodity Futures Trading Commission recently adopted a new rule that requires a futures commission merchant to file notice within 24 hours with the Commission after the firm has been notified by the Securities and Exchange Commission, or a securities or futures self-regulatory organization that it is subject to a formal investigation. It must also file such notices with the FCM’s self-regulatory organization and with the SEC too (unless the investigation was initiated by the SEC), if the FCM is a combined BD and FCM (see new CFTC Rule 1.12(m) at http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/federalregister103013b.pdf).
Compliance Weeds: Although it is not clear from ICE Futures’ announcement what the underlying facts were in connection with this settlement, the announcement serves as a reminder that block trades – like EFRPs -- must be executed strictly in accordance with exchange rules as they are an exception to the Commodity Futures Trading Commission’s ordinary requirements that all futures trades be executed openly and competitively on an exchange’s trading platform. Typically exchange block trade rules set forth the minimum qualifications of counterparties, the minimum size of the block trade; time reporting requirements, a ban on the entity receiving the customer’s order from trading for itself based on the order information (e.g., no pre-hedging or anticipatory hedging); and a requirement that once a person receives non-public information regarding a potential block trade, it cannot trade to take advantage of such information in advance of a public report of the block trade by the exchange (see, e.g., ICE Rule 27.22(b)(iii): https://www.theice.com/publicdocs/rulebooks/futures_us/27_Electronic_Trading_Rules.pdf; NYMEX & COMEX Block Trades Q&A: http://www.cmegroup.com/trading/energy/files/energy-blocks-FAQ.pdf).
And Even More Briefly:
For more information, review:
CFTC Q&A related to Trade Options and Form TO:
CFTC Privacy Best Practices:
FCA V. FXCM LTD:
See also: In the Matter of FCM LLC (CFTC): http://www.cftc.gov/ucm/groups/public/@lrenforcementactions/documents/legalpleading/enffxcmorder10032011.pdf. In the Matter of FCM LLC (NFA): http://www.nfa.futures.org/basicnet/CaseDocument.aspx?seqnum=2963.
FRB Extends Time Period on Comments for Proposed Rulemaking regarding Physical Commodity Activities:
ICE Clear Proposed Rule Change regarding Variation Margin Haircuts:
ICE Futures Disciplinary Matter involving Macquarie Entities:
ICE Futures Proposed Error Trade Policy Amendments:
HK SFC Proposed Enhancements to Dark Pool Requirements:
US Senate Agriculture Committee Hearings:
The information contained in this article is not legal advice. For legal advice, please consult with your attorney. The information in this article is derived from sources believed to be reliable as of March 1, 2014, but no representation or warranty is made regarding the accuracy of any statement. To ensure compliance with requirements imposed by U.S. Treasury Regulations, Gary DeWaal and Associates LLC informs you that any U.S. tax advice contained in this communication (including any attachments) was not intended or written to be used, and cannot be used, for the purpose of (i) avoiding penalties under the Internal Revenue Code or (ii) promoting, marketing or recommending to another party any transaction or matter addressed herein. Gary DeWaal and Associates may represent one or more entities mentioned in this article.