CFTC: Virtual Currency Creates Real Segregation Risks

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Virtual currency presents risks to futures commission merchants (FCMs) when deposited by futures customers or cleared swaps customers to margin futures, options on futures, or cleared swap transactions, according to an Advisory issued last week by the Director of the CFTC’s Division of Swap Dealer and Intermediary Oversight (DSIO). The CFTC staff Advisory is intended to provide guidance to FCMs on developing risk management programs for holding virtual currency as futures customer funds.

One of the most important principles underlying commodity futures regulation is the “segregation” requirement, that is, the requirement that all customer funds for trading must be treated as belonging to the futures customer and kept apart from the FCM’s own funds. These funds include cash deposits and any securities or other property deposited by customers to margin or guarantee futures trading. FCMs must hold sufficient funds in segregated accounts to be able to meet all of their customer obligations. The segregation requirement also applies to funds of customers engaged in swap transaction that are cleared through a registered derivatives clearing organization. (These requirements can be found in Sections 4d(a)(2) and 4d(f) of the Commodity Exchange Act.)

The Advisory reports DSIO’s determination that receiving virtual currency from a customer and holding that currency as segregated funds creates additional risks for the other customers in the same origin. This is because custodians of virtual currencies are “typically not subject to a system of comprehensive federal or state regulation and oversight.” Examples of such risks include: the owner or custodian’s failure to effectively safeguard virtual assets or digital keys or loss of digital keys; misappropriation of those key, hacking of systems designed to hold virtual currencies; and the limited commercial insurance to cover virtual currency losses.

To address these risks, the Advisory “reminds” FCMs to adhere to certain requirements when holding virtual currency as customer funds, including the following:

  • FCMs must deposit such virtual currency only with a bank, trust company, another FCM, or with a clearing organization that clears virtual currency futures, options on futures, or cleared swap contracts;
  • The virtual currency must be held under an account name that clearly identifies the funds as customer funds and shows that the funds are segregated;
  • FCMs must report virtual currency on their daily and month-end segregation statements at fair market value, in U.S. dollars, and reflect the FCM’s reasoned judgment based on spot market or other appropriate market transactions;
  • In their daily calculation of segregated funds, FCMs may not use the value of a customer’s virtual currency to offset a deficit in a future customer’s account, since they are not considered “readily marketable securities;”
  • FCMs may not invest any segregated futures customer or segregated cleared swap customer funds in virtual currency to be held on behalf of customers.

Further, when designing and maintaining its risk management program (required under CFTC Regulation 1.11), an FCM that accepts virtual currency as customer funds should limit its acceptance of virtual currency into segregated accounts to particular types of virtual currency that relate solely to trading of futures or options on futures or cleared swaps contracts that provide for physical delivery of those virtual currencies. The Advisory mentions bitcoin and ether as examples. Moreover, the virtual currency accepted by an FCM should only provide margin value to futures and options contracts related to virtual currency (although the FCM could use virtual currency to cover a customer default from losses on any types of futures or cleared swap transactions).

In a further recognition of these risks, the Advisory specifies that before an FCM even begins to accept any virtual currency into segregation, it should provide 45 days written notice to all futures and cleared swaps customers of the practice.

The Advisory concludes chillingly by stating that, notwithstanding the guidance, the DSIO is free to refer to the Division of Enforcement “the FCM’s practices involving virtual currencies, specific transactions involving virtual currencies or related contracts, or for any other reason.”

Our Takeaway

The DSIO’s Advisory highlights the implications for an FCM of dealing in virtual currency and, specifically, whether to accept virtual currency as futures customer funds. Virtual currency cannot be treated in the same was as fiat currency or other more traditional and stable sources of value, such as securities. A firm that decides to accept virtual currency needs to adopt policies and procedures that go beyond typical segregation funds and which, among other things, limit which types of virtual currency it can accept, how to value the virtual currency for margin purposes, and how to protect the currency against hacks and loss of keys.

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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