Swiss Franc-Euro Decoupling Spurs Worldwide Legal and Regulatory Fallout
Following the unexpected decoupling by the Swiss National Bank (SNB) of the Swiss franc-Euro exchange rate on January 15; the subsequent meteroic rise of the Swiss franc against the euro and, to a lesser extent, the US dollar; and the financial difficulty experienced by at least two international retail foreign exchange dealers, several exchanges and at least one regulator instituted a number of interim measures and promised more.
Among measures taken by exchanges and one regulator:
the National Futures Association increased the minimum security deposit required to be collected by Forex Dealer Members for trading in eight foreign currencies by retail clients—including from two to five percent for transactions involving Swiss francs (reducing the maximum leverage from 50:1 to 20:1);
a panel of the Chicago Mercantile Exchange’s Business Conduct Committee, on an emergency basis, granted additional authority to the CME Group Global Command Center regarding price fluctuation limits on certain CME products—including CME foreign exchange futures and options. The emergency action permits the GCC to modify the amount of price limit expansions; remove price limits at any time; and determine whether a specified trading halt will be instituted, among other authority. (Price fluctuation limits are designed to deter extraordinary price movements in markets and can result in trading halts under certain circumstances. Rules authorizing such limits for foreign exchange futures and options were just enacted in December 2014. Click here for more information.) The CME Group also proposed to amend its rules to grant the GCC the permanent authority “in its absolute and sole discretion, [to] take any action it determines necessary to protect market integrity” in the context of price fluctuation limits, including the type of actions accorded the GCC through the emergency action; and
ICE Futures U.S. increased reasonability limits for all currency pair futures contracts. (Reasonability limits are hard limits maintained by ICE Futures U.S. for its electronic trading system to avoid fat-finger type errors. Among other effects, orders with bids above or offers below a reasonability limit are not accepted.)
Because of the SNB’s decoupling, at least two firms maintaining substantial retail clientele trading foreign exchange experienced significant losses and capital issues as a result of their clients’ trading losses. This prompted one of the firms (based in the United Kingdom)—Alpari (UK) Limited—to initiate an insolvency proceeding last week. The other firm, Forex Capital Markets LLC—commonly known as FXCM—a CFTC-registered retail forex exchange dealer, futures commission merchant and provisionally registered swap dealer—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.
In response, Commissioner Sharon Bowen of the Commodity Futures Trading Commission suggested that the CFTC should look into greater regulation of retail foreign exchange dealers:
As I have said before, we have an obligation to prevent the establishment of “gaps” in our regulations. If we find that a part of the swaps or futures industry is so lightly regulated that investors, markets, and the public are being placed in undue risk, we have an obligation to fill that gap and establish a more efficient and effective regulatory regime…. Specifically, I believe we should consider establishing regulations on the retail foreign exchange industry that are at least as strong as the regulations on the rest of the derivatives industry.
Futures Traders Sanctioned by CME Group Exchanges for Problematic Block Trades, ATS Breakdown, Disruptive Trading, Wash Sales and Other Violations
Exchanges of the Chicago Mercantile Exchange Group imposed numerous sanctions against members and nonmembers related to violations of a cornucopia of rules that address wash sales, block trades and conduct of the nature of spoofing, among other prohibited conduct. One firm was also fined in connection with its automated trading system breakdown.
According to the relevant CME Group business conduct committee (BCC) panels, at various times from March 2010 to May 2013 on the Chicago Mercantile Exchange, and from April 2010 to September 2013 on the Chicago Board of Trade, JP Morgan Securities LLC (1) failed to report accurate execution times for certain block trades; (2) failed to report certain block trades within required time deadlines; (3) did not keep order tickets or other acceptable records of executed block trades; (4) in one instance, reported an inter-commodity spread trade as a block trade when the transaction did not meet the minimum quantity threshold for inter-commodity spread block trades; and (5) reported two block-eligible spread trades in foreign exchange futures with individual legs that were not executed at a single price. In aggregate, JP Morgan agreed to pay US $115,000 to settle these alleged offenses.
Open Position Reporting
JP Morgan also agreed to pay US $95,000 in aggregate to resolve separate charges related to its alleged failure to correctly report open interest during a number of spot-month expiration periods for different futures contracts traded on the CBOT and CME. The relevant BCCs claimed the violations occurred because of operational errors, including, in one instance, “an internal account assignment error that placed futures position resulting from [one] options expiation and subsequent assignments into the wrong subaccount.”
Credit Suisse Securities (USA) LLC agreed to payment of a fine of US$ 175,000 related to an alleged breakdown of an automated trading system that caused an “excessive” number of order and cancel messages on December 14, 2012, involving the March 2013 Two-Year futures contract traded on the CBOT. According to the relevant BCC, although Credit Suisse learned of its malfunction immediately, it permitted its ATS to continue operating for 90 minutes while it endeavored to correct the error. During this time, claimed the BCC, the ATS was responsible for 88% of the messaging volume in the relevant futures contract.
Credit Suisse was previously fined US $150,000 by CME and US $25,000 by ICE Futures U.S. for other ATS breakdowns. (Click here for details in the article, “CME Group Sanctions Member for Not Having Adequate Controls to Prevent Automated Trading System Erroneous Response to Bad Data” in the November 17 to 21 and 24, 2014 edition of Bridging the Week.)
A number of traders settled actions related to disruptive trading practices.
In one action before a New York Mercantile Exchange BCC, Robert Leeds was charged with engaging in acts “inconsistent with just and equitable principles of trade” for problematic conduct on “one or more” occasions between February and June 2012. According to the BCC, during these times, with a resting order on one side of the market involving natural gas futures contracts, Mr. Leeds would place a large order on the opposite side of the market, inducing traders to trade with his resting order. Once the resting order was hit, he would cancel his large order on the opposite side “often less than a second after it was entered.” In connection with this matter, Mr. Leeds agreed to pay a fine of US $40,000, submit to a 15-business day membership suspension and a CME Group products’ trading suspension from January 20 through February 9.
Mr. Leeds also agreed to a separate US $20,000 fine, another 15-day membership suspension and another CME Group products’ trading suspension from February 10 through March 3 in a different disciplinary action before a Nymex BCC. This matter arose because of allegations that Mr. Leeds, on “one or more occasions” between January and April 2013, entered orders during the pre-opening sessions of the natural gas futures contract “that were not for the purpose of executing bona fide transactions.” According to the BCC, “the entry and subsequent cancellation of these orders caused fluctuations in the publicly displayed Indicative Opening Price.”
Similarly, Michael Imperio resolved a disciplinary action before a Commodity Exchange, Inc. BCC where it was alleged that he entered “numerous” large orders in the silver futures contract “without the intent to trade” on multiple occasions from July through November 2013. According to the BCC, Mr. Imperio “entered these large orders to observe the market’s reaction and to encourage market participants to trade opposite his smaller iceberg orders that were resting on the opposite side of the book.” Mr. Imperio, allegedly, routinely cancelled his large orders within one second after his resting iceberg orders were executed. Mr. Imperio agreed to payment of a fine of US $60,000 and a four-week trading access suspension. (Iceberg orders—also sometimes called hidden quantity or maxshow orders—display on Globex only a portion of an order to the marketplace. After the displayed quantity is executed, another portion equal to the executed quantity is revealed as a new order at the bottom of the order book.)
Likewise, Jonathan Brims and Stephen Gola settled CBOT disciplinary actions where it was alleged that, while employees of a CBOT member firm from September 2011 through December 2012, they entered large orders in various CBOT financial futures contracts without the intent to trade “to create the appearance of an imbalance in buy/sell pressure.” They used this appearance, claimed the BCC, to have executed resting orders on the other side of the market. For these offenses, Mr. Gola agreed to pay a fine of US $65,000 while Mr. Brims agreed to remit a fine of US $50,000. Both Mr. Brims and Mr. Gola agreed to 10-business day CME Group products’ trading suspensions. Another employee—apparently of the same unnamed firm—was previously sanctioned for a similar offense (click here for details in the article, “CME Group Fines Trader for Spoofing-Type Offense,” in the November 17 to 21 and 24, 2014 edition of Bridging the Week.)
The conduct allegedly underlying the disciplinary actions against Mr. Leeds, Mr. Imperio, Mr. Brims and Mr. Gola occurred prior to CME Group’s adoption of its express prohibition against disruptive practices (Rule 575; click here to access) in September 2014. As a result, the respondents were charged with broad prohibitions against engaging in dishonorable or uncommercial conduct and/or acts detrimental to the interest or welfare of the exchange.
In another matter, Sunil Arora agreed to pay a fine of US $60,000 and to a 30-business day CME Group products’ trading suspension, for crossing “numerous” buy and sell customer orders on CME Globex between January 2012 and May 2013 subsequent to pre-execution communications. According to the CME BCC, “in the majority of these instances,” Mr. Arora either did not enter a request for quote (RFQ) followed by a request for cross (RFC), or entered an RFQ or an RFC, but not both.
Finally, Kaloti Jewellery International DMCC and Tarek El-Mdaka agreed to sanctions by Comex in connection with trades allegedly placed by Mr. El-Mdaka for one account of Kaloti, while directing other Kaloti traders to trade opposite him for another account of Kaloti. This trading was done, claimed the Comex BCC, to close out Kaloti positions at one clearing firm. The BCC “found that Mr. El-Mdaka failed to diligently supervise these traders in that he was not familiar with Exchange rules and directed them to engage in wash trades.” To resolve this matter, Kaloti agreed to pay a fine of US $30,000 and Mr. El-Mdaka, to pay a fine of US $10,000. Mr. El-Mdaka also agreed to a five-business day trading access suspension.
Compliance Weeds: Each of these actions points to the need for repetitive training to trading and operations staff regarding the nuances of exchange rules regarding position reporting and trading practices. Moreover, where certain noncompetitive trading is authorized by exchanges (e.g., block trades, exchange for related positions, pre-execution communications), traders must also often be reminded of the specific requirements of such authorizations. Violations of these requirements potentially violate not only the relevant exchange’s rules, but applicable law and rules of the Commodity Futures Trading Commission that prohibit noncompetitive transactions unless expressly done in accordance with approved exchange rules.
SEC and Two States Sanction S&P for Misconduct Related to Ratings of Commercial-Backed Securities: Standard and Poor’s Rating Services resolved enforcement actions by the Securities and Exchange Commission, the New York Attorney General and the Massachusetts Attorney General by agreeing to pay aggregate penalties of US $77 million, among other sanctions—including a one-year time-out from rating certain commercial mortgage-backed securities (CMBSs). The SEC filed and settled three separate enforcement actions against S&P. One related to S&P’s handling of its methodology for rating certain types of CMBSs. The SEC charged that S&P changed its methodology in 2010 to apply a less strict standard without disclosing this in eight presale reports issued between February and July 2011. The second SEC enforcement action related to a 2012 report showing average commercial loan pool losses of approximately 20% applying Great Depression levels of economic stress. This report was issued by S&P, said the SEC, to demonstrate “the relative conservatism of its new criteria.” However, the SEC claimed this report was flawed because material assumptions were not disclosed, including that underlying data was unrelated to the Great Depression. Finally, the third SEC enforcement action related to S&P’s failure from October 2012 through January 2014 to maintain and enforce adequate internal controls regarding changes in assumptions used in reviewing certain residential mortgage-backed securities. These assumptions—which were inconsistent with assumptions described by S&P publicly, said the SEC—related to estimated losses that would be incurred if a mortgage defaulted. The Massachusetts and NY Attorneys General also fined S&P related to its “misleading public statements” regarding its methodology to rate certain CMBSs in 2011.The SEC separately commenced an administrating proceeding against Barbara Duka, who at the relevant time, was in charge of S&P’s team that published the eight presale reports related to the relevant CMBSs that were the subject to the various enforcement actions. The SEC charged that Ms. Duka “acted with scienter in connection with the false and misleading CMBS Presales, in that Duka and the CMBS Group knew that the Presales contained inaccurate data and intentionally or recklessly caused such inaccurate data to be published.” Previously, Ms. Duka filed an action in a federal court in New York seeking to enjoin the SEC from commencing the adminstrative action against her, claiming that the administrative proceeding violated her constitutional rights. That action is pending.
FCA Fines and Bans Two Former Senior Executives of Martin Brokers for Contributing to an Unsatisfactory Corporate Culture: The Financial Conduct Authority fined the former chief executive and chief compliance officer of Martin Brokers (UK) Limited for compliance and cultural failings at the firm. David Caplin, the former CEO, agreed to pay a fine of GBP 210,000 (approximately US $315,000), while Jeremy Kraft, the former CCO, agreed to pay a fine of GBP 105,000 (approximately US $155,000). Both individuals also consented to an order prohibiting them from performing any so-called “significant influence function” in connection with any FCA-regulated activity going forward. Both the Commodity Futures Trading Commission and the FCA have previously settled enforcement proceedings against Martin Brokers and, in the case of the CFTC, against RP Martin Holdings Limited too, claiming that the firms participated in the attempted and actual manipulation of the official fixing of the London Interbank Offered Rate from at least September 2008 through August 2009. (Click here for details in the article, “CFTC and UK FCA Settle LIBOR-Related Manipulation Charges Against RP Martin Holdings and Martin Brokers (UK)” in the May 12 to 16 and 19, 2014 edition of Bridging the Week.) According to the FCA, Mr. Caplin was “the dominant personality at [Martin Brokers] and his authority over the broking firm was absolute.” In assessing the performance of the firm’s brokers, Mr. Caplin “looked primarily at that [b]roker’s commission and the strength of that [b]roker’s earning potential,” said the FCA. According to the FCA, this culture “ultimately proved to be at the expense of regulatory compliance.” In assessing Mr. Kraft’s failings, the FCA noted that Mr. Kraft was “pre-occupied” with his strategic and operational responsibilities at Martin Broker in addition to other responsibilities and thus “failed to give due attention” to his responsibilities as chief compliance officer. Mr. Kraft also failed, said the FCA, adequately to assess Martin Brokers’ compliance risks and failed to keep the FCA and its predecessor agency adequately informed “of basic and important regulatory matters.” According to a statement issued by the FCA, “Mr. Kraft and Mr. Caplin were responsible for setting the right culture at Martins and ensuring that the firm’s risk management systems and controls were adequate to oversee its broking activities. They failed to do this. Proper systems and controls were non-existent and there was a culture at Martins where revenue came first and compliance was seen as unimportant rather than as an integral part of the running of the firm.”
Culture and Ethics: Setting the right tone is more than the mechanical implementation of required rules and regulations. It is a direction from the board of directors and senior management that the standard of conduct is not just complying with the law, but complying with the spirit of the law to ensure that customers and counterparties are treated fairly, and that the reputation of the firm is constantly maintained if not enhanced. I have said it many times—the standard of conduct for all employees should be the “grandmother test:” don’t engage in conduct that would embarrass you if your grandmother read about it in the morning tabloid and later asked about it during breakfast! A very simple test! Remember: keep grandma proud!
CME Group Amends Rule Formally to Prohibit Intraday Violations of Position Limits; Eliminates Provision Dealing With Bids and Offers: The CME Group is proposing to amend its rules expressly to prohibit violations of position limits on an intraday basis. CME Group exchanges have routinely applied its prohibition against maintaining positions in violation of position limits (CME Rule 562; click here to access) both on an intraday and end-of-day basis, consistent with how the Commodity Futures Trading Commission and other exchanges apply their equivalent prohibitions. Simultaneously, the CME Group is proposing to eliminate its express prohibition against making bids or offers that, if accepted, would cause a position limit violation Instead, the exchange suggests that such bids or offers might be deemed “disruptive,” and contrary to its express prohibition against disruptive trading or a general offense. CME Group’s proposed amendment is expected to be effective February 6.
Compliance Weeds: CME Group’s proposed rule amendments will conform the exchange’s prohibitions with those of the CFTC and ICE Futures U.S. The CME Group is currently unique in prohibiting under all circumstances bids or offers that if executed would cause a position limit violation. (Click here for more details in the article, “CME Sanctions Trader for Violating Position Limits Solely for an Offer to Sell” in the June 30 to July 4 and 7 edition of Bridging the Week.)
Broker-Dealer Sanctioned by FINRA for Sharing Confidential Customer Information in Connection With a Class Action Lawsuit: Scottrade, Inc. agreed to pay a fine of US $200,000 and various undertakings to resolve an enforcement action brought by the Financial Industry Regulatory Authority regarding the firm’s alleged unauthorized sharing of information related to 300,000 customers in connection with a class action litigation. According to FINRA, on 36 occasions in 2012, Scotttrade disclosed the names and addresses of the customers in violation of an applicable rule of the Securities and Exchange Commission (Regulation S-P; click here for more details) that generally prohibits disclosure of nonpublic customer information unless a customer receives proper notice and an opportunity to opt out of the disclosure, and rules of FINRA and its predecessor (NASD Regulation Inc.). The information was disclosed to a claims administrator or a private law firm in connection with a class action lawsuit related to the purchases of Veolia Environnement S.A. American depository shares between April 27, 2007, and August 4, 2011. Both the claims administrator and the law firm had asked Scottrade to forward a form notice to the relevant customers or provide the customer information to them. Scottrade opted to forward the information voluntarily as the request was neither a subpoena nor a court order, said FINRA.
CME Group Adds Its View to “Skin in the Game” Debate: The Chicago Mercantile Exchange Group added its voice to the debate about the appropriate level of contribution or “skin in the game” a clearinghouse should make to its clearing member default waterfall in a white paper it published. Arguing that it is a “misconception” that “central clearing results in a concentration of systemic risks,” CME noted that, instead, “risks may be concentrated within a clearing member through the exposure they bring to a [clearinghouse].” Accordingly, says CME, clearinghouses structure default waterfalls “to ensure they can adequately manage the risks brought by clearing members and encourage prudent balancing of risk among clearing members.” CME reminded that it has “long advocated for meaningful, funded, first-loss contributions to the [clearinghouse] waterfall in advance of the mutualized clearing member default fund, and has demonstrated this commitment with its own dedicated capital.” CME said that, as of September 30, 2014, its US and UK waterfall contributions were US $375 million or approximately 5.25 percent of its total funded, mutualized default funds. Previously, LCH.Clearnet weighed in on a host of clearinghouse issues, including what it considered an appropriate level of skin in the game, in a white paper it also published. (Click here to access the article, “…While a Clearinghouse—LCH.Clearnet—Weighs in on Clearinghouse Issues Too” in the December 1 to 5 and 8, 2014 Bridging the Week.)
And even more briefly:
CFTC Approves Three Foreign Boards of Trade in Asia: The Commodity Futures Trading Commission designated three non-US based futures and options exchanges as so-called “foreign boards of trade:” Bursa Malaysia Derivatives Berhad, Singapore Exchange Derivatives Trading Limited and the Tokyo Commodity Exchange, Inc. The approval permits participants in the United States to access these markets directly through the exchanges’ electronic order entry and trade matching systems.
Foreign-Domiciled IBs Authorized to Use Local Accounting Principles in Connection With CFTC Financial Filings: The Division of Swap Dealer and Intermediary Oversight of the Commodity Futures Trading Commission authorized non-US domiciled introducing brokers to apply local accounting principles in connection with required financial filings, when local accounting standards do not conform to generally accepted accounting principles adopted in the United States (US GAAP) or international financial reporting standards (IFRS) as adopted by the International Accounting Standards Board in lieu of US GAAP. Staff also authorized non-US domiciled IBs to report account balances in the local currency where the IB is domiciled (instead of in US dollars) and not to apply foreign currency capital charges required under CFTC regulations where the foreign currency is the local currency in the jurisdiction where the IB is located. The relief is subject to various conditions, including that all financial reports must be prepared in English.
SFC Provides Overview of HK Asset Management Industry: The Securities and Futures Commission of Hong Kong published an overview of the asset management industry there. Among other findings, SFC acknowledged that while assets under management ex-Australia and ex-Japan (US $ 4.4 trillion) is small compared to the United States and Europe, “it has seen the fastest growth globally in the past five years.” In Hong Kong, claimed SFC, there is investor demand for funds with “high-yield, multi-asset, unconstrained and alternative strategies, as well as for exchange-traded products … with illiquid underlying assets” because of the low interest rate environment. While outside of HK, fund products can be distributed through exchange-operated platforms, there are no such distribution platforms in HK. Accordingly, “most asset managers … observed they would find an additional distribution channel to be useful, especially in the context of greater connection between the Hong Kong and Mainland China Exchanges.” Asset managers in HK claim that “the key advantages of Hong Kong as a regional asset management centre lie in its solid rule of law and increasing connectivity to a large investor base in Mainland China.”
CME Group Clarifies Proper Practices for Handling Simultaneous Buys and Sells for Different Customers: The CME Group has issued an advisory notice, effective February 6, related to the “proper procedures” for both open outcry and electronic markets to handle simultaneous buy and sell orders for different beneficial owners (these are different than the requirements for pre-execution communications which are governed by CME Group Rule 539; click here to access). In general, in the open outcry market, a floor broker must simultaneously bid and offer the prices three times in a manner that is transparent to the trading pit. Afterwards, the floor broker may match the orders in the presence of a floor operations member. Where a trader accessing an electronic platform has discretion over two accounts with different beneficial owners and seeks to enter offsetting orders, the trader must first expose the buy or sell order for a minimum of five seconds, if a futures order, or 15 seconds, if an options order. Afterwards the opposite order may be entered.
For more information, see:
Broker-Dealer Sanctioned by FINRA for Sharing Confidential Customer Information in Connection With a Class Action Lawsuit:
CFTC Approves Three Foreign Boards of Trade in Asia:
CME Group Adds Its View to “Skin in the Game” Debate:
CME Group Amends Rule Formally to Prohibit Intraday Violations of Position Limits; Eliminates Provision Dealing With Bids and Offers:
CME Group Clarifies Proper Practices for Handling Simultaneous Buys and Sells for Different Customers:
FCA Fines and Bans Two Former Senior Executives of Martin Brokers for Contributing to an Unsatisfactory Corporate Culture:
Foreign-Domiciled IBs Authorized to Use Local Accounting Principles in Connection With CFTC Financial Filings:
Futures Traders Sanctioned by CME Group Exchanges for Problematic Block Trades, ATS Breakdown, Disruptive Trading, Wash Trades and Other Violations:
Open Position Accounting:
SEC and Two States Sanction S&P for Misconduct Related to Ratings of Commercial-Backed Securities:
See also Duka v. SEC:
Massachusetts Attorney General:
NY Attorney General:
SFC Provides Overview of HK Asset Management Industry:
Swiss Franc-Euro Decoupling Spurs Worldwide Legal and Regulatory Fallout: