Bridging the Week - January 2015 #2

Katten Muchin Rosenman LLP

FINRA Highlights Member Examinations Focus for 2015

The Financial Industry Regulatory Authority issued its annual letter to broker-dealers setting forth its regulation and examination priorities for the new year.

In general, FINRA indicated that it would concentrate its reviews on “key sales practice, financial and operational and market integrity matters.” However, it also reminded members they must respond timely to FINRA information requests made as part of investigations and examinations. According to FINRA, it has recently experienced an “increasing number of situations” where members have not provided information in a timely fashion:

this is particularly troubling as FINRA discusses large and complex information requests with firms and is flexible with respect to due dates, rolling productions, scope and format—as long as the integrity of the regulatory matter is not compromised. These situations are not acceptable, as timely productions of information (as well as oral information through interviews and on-the-record testimony) are critical to FINRA achieving its investor protection and market integrity mission by identifying and shutting down bad practices and bad actors at the earliest possible time.

Among the specific areas (there are many more) FINRA will look at this year are:

  • Private placements – FINRA is concerned about adequate due diligence and suitability analysis by broker-dealers. FINRA notes that, while recent amendments to rules of the Securities and Exchange Commission permit general solicitation and advertising when offering private placements, all purchasers of the offering must be SEC-defined accredited investors (i.e., certain enumerated, particularly knowledgeable or high net worth entities and persons);
  • Anti-money laundering – FINRA says it will focus on certain types of accounts – cash management accounts, and certain delivery versus payment and receipt versus payment accounts to assess the adequacy of broker-dealers’ AML programs This is because, says FINRA, it has seen that:

some firms are not monitoring activity in DVP/RVP accounts for suspicious activity, and are not conducting adequate due diligence to ensure that securities being sold are registered [as required under law] or the transaction is subject to an exemption from registration.

FINRA will also be generally assessing the adequacy of firms’ surveillance activities to detect suspicious activity;

  • Cybersecurity – FINRA says it will review broker-dealers’ “approaches to cybersecurity risk management.” This will include reviews of their governance structures, their process for conducting risk assessments and how they address the output from these assessments. In connection with this review, FINRA advised it will soon be publishing the results of a January 2014 member sweep it conducted to better understand cybersecurity threats faced by firms;
  • Outsourcing – This is a “priority” area, says FINRA. The agency will seek to ensure that broker-dealers are fully compliant with their regulatory obligations when they outsource them and how they supervise their service providers; and
  • Market Integrity – FINRA will examine firms’ technology supporting electronic trading and related controls, with an emphasis on “the development and ongoing supervision of algorithms.” FINRA will seek to identify algorithms that promote manipulative trading activity, as well as firms that grant direct market access with inadequate access controls.

This is the tenth year FINRA has published its “Regulatory and Examination Priorities Letter.”

(Click here for further details in the article “FINRA Issues Annual Regulatory and Examination Letter for 2015” in the January 9, 2015 Corporate & Financial Weekly Digest by Katten Muchin Rosenman LLP).

CSRC Proposes Interim Measures to Accommodate Access to Approved China Derivatives Markets; SHFE Likely First Beneficiary for Crude Futures Contract

The China Securities Regulatory Commission is soliciting public comment on proposed rules that, if adopted, will permit certain foreign nationals and brokerage firms to trade particularly designated futures contracts listed on China’s futures exchanges.

Under CSRC’s proposal, overseas customers would be permitted to access approved futures either through Chinese or overseas brokers, or trade directly through exchange facilities, subject to exchange approval. Only local brokers could directly clear approved products for foreign nationals, or qualified overseas brokers that establish or control entities in pilot free trade zones in China (one is located in Shanghai).

CSRC, the relevant exchange, the China Futures Association and the China Futures Margin Monitoring Center would all play roles in monitoring aspects of trading by overseas customers and brokers. (Click here to see an interview I gave to John Lothian News in November 2012 regarding the China Futures Margin Monitoring Center.)

Among other things, qualified overseas customers would have to satisfy eligibility requirements established by CSRC and the relevant exchange. Authorized foreign brokerage firms would have to be subject to oversight by a regulator with a memorandum of understanding with CSRC governing cooperation. Relevant futures exchanges, domestic futures companies and overseas brokers would have to establish and administer a suitability system in connection with trading by foreign nationals. CSRC contemplates a large trader reporting type regime in connection with futures positions, and would require overseas traders and brokers to submit to regular or random on-site inspections.

CSRC published its guidelines on December 31, 2014, and comments are due by January 31, 2015. Media reports have indicated that the crude oil contract trades on the Shanghai Futures Exchange is likely to be the first beneficiary of the new rules (click here for a sample media report).

Currently, only a stock index futures contract listed on the China Financial Futures Exchange is available for hedging purposes to a limited group of foreigners – so-called “qualified foreign institutional investors” – under very limited conditions. In addition, the International Board of the Shanghai Pilot Free Trade Zone was launched by the Shanghai Gold Exchange in September 2014. It trades both spot and forward gold and is accessible to qualified international investors.

Helpful to Getting the Business Done: The potential opening of China’s futures markets to foreign traders and brokers is an important development that should be studied and assessed as a real business opportunity. A good starting point is reviewing and potentially commenting on CSRC’s proposed interim measures. In China, relationships or “guanxi” are exceptionally important, and building relationships with regulators is important for foreigners to conduct business there. Responding in a helpful way to CSRC’s request for feedback can be a valuable first step in establishing a good relationship – provided comments are constructive and educational and not strident or didactic. Moreover, all comments by foreigners should be written in Chinese. Doing business in China requires patience and recognition that there are different ways to conduct business – not all in accordance with American standards and custom.

And briefly:

  • ICE Futures Europe to Adopt Another Variation of Disruptive Trading Practices Rule: On January 2, ICE Futures Europe published new rules prohibiting disruptive trading practices that are similar to rules previously proposed by ICE Futures U.S. and ICE Futures Canada – however, there are differences. In general, unlike the proposed disruptive trading rules of ICE U.S. and ICE Canada (which themselves are different from each other), the proposed rules for ICE Europe seem to prohibit all conduct that touches upon four prescribed activities – not just intentional conduct; however, one additional type of conduct is subject to a “reckless disregard standard” (i.e., entering an order with reckless disregard for the adverse impact of the order). The four prescribed activities include conduct sometimes regarded as spoofing; misleading other participants; overloading, delaying or disrupting exchange or other market participants’ trading systems; and disrupting the orderly conduct of trading. For example, whereas ICE Futures U.S. proposes to prohibit trading activity with the “intent to overload, delay, or disrupt the systems of the Exchange or other market participants” (emphasis added), ICE Futures Europe proposes that a trader shall not “overload, delay, or disrupt the systems of the Exchange or other market participants” – without any qualification. An accidental incident could seemingly be a violation of this provision. ICE Europe’s proposed new rules are scheduled to be effective January 16. ICE Futures U.S.’s and ICE Futures Canada’s new rules are scheduled to go into effect on January 14. (Click here for additional information in the article “ICE Futures U.S. and Canada Amend Rules to Expressly Prohibit Disruptive Trading Practices” in the December 22, 2014, to January 2 and 5 edition of Bridging the Week.)

My View: Given the potential serious consequences of engaging is disruptive trading as a result of enforcement actions brought by national regulators or disciplinary actions brought by exchanges let alone potential criminal prosecutions (click here to see the article “NJ-Based Trader Previously Sanctioned by UK FCA, CFTC and CME Indicted in Chicago for Same Spoofing Offenses,” in the September 29 to October 3 and 6, 2014 edition of Bridging the Week)– it is incumbent for regulatory authorities worldwide to articulate a single standard for prohibited practices that does not inadvertently capture legitimate practices. This appears to be an appropriate project for the International Organization of Securities Commissions.

  • Federal Reserve Inspector General Finds Deficiencies in Regulatory Oversight of London Whale Risks – the Complete Report: The Office of Inspector General of the Federal Reserve System published a full redacted report regarding its allegations that various supervisory breakdowns at the Federal Reserve Bank of New York caused the FRB NY not to investigate trading activities by the Chief Investment Office of JPMorgan Chase & Company’s London office that ultimately caused the bank to sustain over US $6 billion in losses by the end of 2012. A summary of this report was initially published during October 2014. (Click here to see a description of this summary in the article “Federal Reserve Inspector General Finds Deficiencies in Regulatory Oversight of London Whale Risks,” in the October 20 to 24 and 27, 2014 edition of Bridging the Week.) Among other things, the full report elaborated on apparent breakdowns in information sharing and coordination between staff of the FRB NY and the Office of Comptroller of the Currency that might have discouraged OCC from adequately reviewing JPMC’s trading activities when the FRB NY was unable to review such activity itself. According to OIG, “[o]ne FRB New York interviewee described the relationship between the FRB New York and OCC supervision teams as ‘tense’ and indicated that the leads on both supervisory teams did not cooperate. [Another] FRB New York official noted that there were ‘turf battles’ between the two supervisory agencies.” OIG also claimed that the FRB NY never conducted various proposed formal reviews of JPMC because of “many supervisory demands and a lack of supervisory resources;” weaknesses in controls involving the supervisory planning process; and a 2011 reorganization of the FRB NY’s supervisory team at JPMC that led to a significant loss of institutional knowledge regarding JPMC’s chief investment officer.
  • ISDA Says One-Third of End Users Are Unsure Whether Uncleared Margin Rules Will Apply; Congress Passes Bill to Help Clarify: A new survey published by the International Swaps and Derivatives Association, Inc. suggests that one-third of derivatives end users are unsure whether they will be subject to proposed new margin rules for uncleared swaps, while, of the one-third who knew they would likely have to comply, over 65% had concerns to some degree regarding their ability to meet their obligations. Last year, the Federal Reserve Bank and four other federal agencies, and later, the Commodity Futures Trading Commission, proposed rules for uncleared swaps for swap entities they regulate. Under these proposals, obligations to post variation margin would be effective December 1, 2015, while requirements regarding initial margin would be phased in from December 1, 2015, to December 1, 2019, depending on the type of entity. Generally, non-financial end users would not be required to post initial or variation margin by law, but could be required by a counterparty. (Click here for the article, “FRB and Four Other Federal Agencies Propose Minimum Margin Rules for Uncleared Swaps” in the September 1 to 5 and 8, 2014 edition of Bridging the Week). Last week both houses of Congress passed a bill that would amend applicable federal law to make clear that end users who are exempt from mandatory obligations to clear certain swaps are also exempt from any mandatory obligation to post initial or variation margin in connection with such swaps. This bill does not seem to impact counterparties’ right to call for margin from end users, however.
  • CFTC Staff Issues Relief to Swap Dealer From CCO Reporting Line Requirements: The Commodity Futures Trading Commission’s Division of Swap Dealer and Intermediary Oversight granted relief to a provisionally registered swap dealer from certain reporting requirements of its chief compliance officer. Ordinarily, a CCO must report directly to a swap dealer’s board of directors or senior officer, and consult with the board, a body performing a similar function as the board, or the senior officer in connection with certain matters. Staff authorized the CCO to report directly to the governing body provided (1) the board or senior officer remains responsible for appointing, approving the compensation of and potentially terminating the CCO; (2) the CCO provides the firm’s annual compliance report to the board, senior officer and governing body concurrently; (3) the governing body meet with the CCO at least annually and at the election of the CCO; (4) the board or senior officer meets with the CCO when requested; (5) the CCO provides the board or senior officer a summary of his or her consultations in the firm’s annual compliance report; and (6) the governing body observes required corporate formalities such as having regular meetings and maintaining minutes. (Click here for further details in the article “CFTC Allows Swap Dealer’s CCO to Report to the Governing Body” in the January 9, 2015 Corporate & Financial Weekly Digest by Katten Muchin Rosenman LLP).

And even more briefly:

  • US Treasury Offers OFAC’s List of Sanctioned and Prohibited Persons in New Format: The US Department of Treasury introduced a new format for the Office of Foreign Assets Control’s Specially Designated Nationals and Blocked Persons lists. The new format provides additional information regarding labels for names (i.e., to reflect specific cultures, languages or regions) and supports language scripts other than just standard Latin script (i.e., Arabic), among other new features. According to OFAC, the new format will not contain new data, but “contains additional meta data that may further aid compliance and screening programs.” The new format is not replacing the old format; both formats will be available going forward.
  • CME Group Corrects Wash Sales Advisory: CME Group corrected a proposed market regulation advisory notice that reinstated an existing interpretation regarding block trades between affiliates subject to 100% common control – such transactions are prohibited unless certain enumerated conditions exist. The new MRAN was effective January 2. (Click here for more details in the article “CME Group Amends Proposed Guidance Related to Wash Trade Rules and Block Trades” and in the article “ICE Futures U.S. and Canada Amend Rules to Expressly Prohibit Disruptive Trading Practices” in the December 22, 2014 to January 2 and 5 edition of Bridging the Week.)
  • Block Trade Rules Updated by CME and CBOT to Reflect CFTC Minimum Size Rules: CME Group proposed to update a market regulation advisory notice for the Chicago Mercantile Exchange and Chicago Board of Trade to reflect that minimum thresholds for swap block trades will be set at levels equal to or in excess of minimum values required by the Commodity Futures Trading Commission. The new MRAN is effective January 21.

And finally

  • Totally Irrelevant (But Is it?): Charlie Hebdo – The tragedy in Paris this week involving the slaughter of cartoonists working for the satirical newspaper Charlie Hebdo, as well as other persons innocently caught up in this and apparently related events, reminds us all of the temporal nature of life, and the anarchy that seems to occupy the front pages of our newspapers all too often these days. I have no original insight or thoughts to add to the extensive commentary that already exists regarding this matter  except to express my admiration for the over 1.5 million ordinary citizens and world leaders who joined and marched together against extremism in a wounded and tense Paris Sunday. As someone who has travelled extensively to France over the years and has many friends and former colleagues there (having worked for a subsidiary of Société Générale for over 16 years), I was exceptionally saddened by the events last week – particularly since I recall how kind and supportive my friends and ex-colleagues there were to me when I was stranded in Paris for almost a week after 9/11. I will always cringe at offensive expression but defend vigorously the right to free speech. In any case, no one should ever be killed for drawing a cartoon. As a result: Je suis Charlie!

For more information, see:

Block Trade Rules Updated by CME and CBOT to Reflect CFTC Minimum Size Rules:

CFTC Staff Issues Relief to Swap Dealer From CCO Reporting Line Requirements:

CME Group Corrects Wash Sales Advisory:

CSRC Proposes Interim Measures to Accommodate Access to Approved China Derivatives Markets; SHFE Likely First Beneficiary for Crude Futures Contract:

Federal Reserve Inspector General Finds Deficiencies in Regulatory Oversight of London Whale Risks – the Complete Report:

FINRA Highlights Member Examinations Focus for 2015:

ICE Futures Europe to Adopt Another Variation of Disruptive Trading Practices Rule:

See sections E2.2(a)(x-xiv):

ISDA Says One-Third of End Users Unsure Whether Uncleared Margin Rules Will Apply; Congress Passes Bill to Help Clarify:

See ISDA Insight: A Survey of Issues and Trends for the Derivatives End-user Community:

See also, H.R. 26: Title III – Business Risk Mitigation and Price Stabilization (68-70):

US Treasury Offers OFAC’s List of Sanctioned and Prohibited Persons in New Format:


DISCLAIMER: Because of the generality of this update, the information provided herein may not be applicable in all situations and should not be acted upon without specific legal advice based on particular situations.

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