A non-US-based investment and brokerage firm agreed to settle spoofing allegations by the Commodity Futures Trading Commission by payment of a US $700,000 fine. In accepting this settlement, the CFTC emphasized the cooperation of the defendant. Separately, a Dubai court declined to authorize an appeal of a fine and ban on assisting financial services firms in the Dubai Financial Centre imposed on a compliance officer by the Dubai Financial Services Authority. DFSA claimed that the compliance officer recklessly provided false information to it for approximately two years. As a result, the following matters are covered in this week’s edition of Bridging the Week:
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According to the CFTC, the alleged illicit spoofing transactions occurred at Daewoo Securities Co., Ltd. from December 2014 to April 2016, prior to the firm being purchased by Mirae. The CFTC claimed that, during the relevant time on multiple occasions, an unnamed trader at Daewoo placed orders for E-mini S&P 500 index futures contracts traded on the Chicago Mercantile Exchange with the intent to cancel them before execution. In one type of transaction, the CFTC said the trader would place one or more “disproportionally” large orders on one side of the market with the goal of providing a misleading impression of market depth and attracting market participants to trade on the opposite side of his large orders. Once liquidity entered the marketplace, the trader entered a small order on the side of the market opposite his large orders, and as soon as it was executed, he cancelled his large orders.
The CFTC acknowledged that, after learning of the Division’s investigation, Mirae cooperated with it by hiring an outside counsel to investigate the matter as well as an expert to review the trader’s transactions, and voluntarily produced documents and information.
Legal Weeds: In January 2017, the CFTC’s Division of Enforcement updated a 2007 advisory (click here to access) to clarify the type of cooperation it would consider to recommend reduced charges or sanctions against a company or an individual in connection with an enforcement investigation or action.
In general, the Division said it would look “for more than ordinary cooperation or mere compliance with the requirements of law.” In evaluating this, the Division noted three factors it would consider: (1) whether the cooperation resulted in “material assistance” to the Commission’s investigation and enforcement action, including its success, considering the timeliness, nature and quality of the cooperation; (2) whether the cooperation encouraged “high quality” assistance from other persons considering the significance and harm of the relevant type of misconduct and CFTC resources conserved as a result of the help; and (3) the subject’s culpability, and in the case of a company, its culture and other relevant factors. (Click here for more background in the article “Cooperate and Maybe Benefit Says CFTC Division of Enforcement” in the January 29, 2017 edition of Bridging the Week.)
Later in 2017, James McDonald, Director of the DOE, said that potential wrongdoers who voluntarily self-report their violations, fully cooperate in any subsequent CFTC investigation, and fix the cause of their wrongdoing to prevent a reoccurrence will receive “substantial benefits” in the form of significantly lesser sanctions in any enforcement proceeding and “in truly extraordinary circumstances,” no prosecution at all. (Click here for background in the article “New Math: Come Forward + Come Clean + Remediate = Substantial Settlement Benefits Says CFTC Enforcement Chief” in the October 1, 2017 edition of Bridging the Week.) Contemporaneously with his speech, the CFTC’s DOE released a formal Updated Advisory on Self Reporting and Full Cooperation that memorialized and expanded the elements of Mr. McDonald’s presentation (click here to access).
Since 2017, the CFTC has often noted in settlement orders that a respondent’s cooperation has contributed to reduced sanctions. (Click here for multiple examples referenced in the article “CFTC Settles Avalanche of Enforcement Actions Alleging Failure to Supervise, Spoofing, Reporting Violations and Providing Misleading Information to the CFTC and FCMs” in the October 6, 2019 edition of Bridging the Week (see, e.g., section entitled “Claimed Reporting Infractions”).)
In 2018, the CFTC expressly determined not to bring an enforcement action at all against Deutsche Bank after the Commission brought and settled charges against a trader for the bank for purportedly mismarking his swap trading portfolio to disguise trading losses. The CFTC said it determined not to commence proceedings against Deutsche Bank because of its “timely, voluntary self-disclosure” of the incident, full cooperation, and “proactive remediation efforts.” (Click here for more in the article “Ex-Bank Trader Fined US $350,000 and Banned From All CFTC Overseen Markets for Allegedly Concealing Swaps Trading Losses; Bank That Self-Reported, Cooperated and Remediated Receives Letter Closing Investigation” in the November 11, 2018 edition of Bridging the Week.)
Specifically, in June 2017, the Dubai Financial Services Authority fined Anna Waterhouse US $100,000 and prohibited her from performing any function associated with providing financial services in or from the DIFC because she purportedly was “reckless” in providing information to the DFSA “on several occasions” from October 31, 2011 through October 1, 2013, regarding activities of Deutsche Bank’s local private wealth management team that later turned out to be false.
A DIFC specialized independent tribunal – the Financial Markets Tribunal ("FMT") – affirmed DFSA’s decision in August 2019. Last month, Ms. Waterhouse failed in an effort to have a DIFC court hear an appeal of her decision; moreover, the DIFC court evaluating her application for an appeal required her to pay all costs incurred by DFSA in opposing her appeal efforts.
According to the FMT, during the relevant time, Ms. Waterhouse “repeatedly” told the regulator that DB’s local private wealth management team solely referred prospective clients to other DB offices and never provided them with any financial services. However, DFSA claimed Ms. Waterhouse “was reckless as to the truth of these statements and ignored signs that breaches were occurring.” The regulator claimed that Ms. Waterhouse became aware by October/November 2011 that the local private wealth management team was, in fact, acting contrary to local law and engaging in behavior inconsistent with her representations; she did not correct her prior information to DFSA until late 2013, said DFSA.
In March 2015, the DFSA imposed a fine of US $8.4 million on DB’s DIFC branch for the activities of its private wealth management team contrary to its authority.
Ms. Waterhouse denied the DFSA’s allegations, claiming that she believed all statements she made to the DFSA were true. Among other things, Ms. Waterhouse claimed that she relied on members of her compliance team to investigate compliance issues and to escalate them to her, and since no relevant issues were identified to her, she had no reason to believe impermissible activity was occurring. Moreover, she claimed her “role was very demanding and that she lacked the resources to discharge it as fully as she would have liked.”
In an article on BBC News in October 2019, Ms. Waterhouse also claimed that the DFSA took action again her solely after she reported suspicious activities by a major gold refiner in Dubai to local authorities (click here for a copy of the relevant article).
Ms. Waterhouse was DB's head of compliance for the Middle East and North Africa from January 1, 2011 through January 21, 2014, and also Head of Legal from November 2011.
Compliance Weeds: In its 2019 fiscal year, the Commodity Futures Trading Commission on multiple occasions identified deficiencies in chief compliance officer annual reports in enforcement actions and highlighted the role of compliance officers in contributing to their firms’ alleged regulatory violations.
In November 2018, Commerzbank AG agreed to pay a fine of US $12 million to the CFTC to resolve charges that, from December 31, 2012 through at least 2018, it failed to comply with various requirements for swap dealers, and for two years, it filed chief compliance officer annual reports that did not “adequately disclose” deficiencies in compliance of which it was aware.
According to the CFTC, during “much” of the relevant time Commerzbank failed to have an “effective, bank-wide process” to evaluate whether its transactions with certain non-US persons were subject to requirements for swaps under applicable law. Additionally, the CFTC claimed that in 2015, Commerzbank filed a CCO annual report for 2014 that failed to identify material compliance issues identified for the bank in 2014 by an outside consultant that had been retained to evaluate its policies and procedures for adherence to applicable requirements. The CFTC also said that Commerzbank’s 2015 CCO annual report filed in 2016 did not disclose problems with the bank’s large trader reporting compliance that Commerzbank identified in March 2015.
(Click here for background in the article “Swap Dealer Agrees to Pay US $12 Million to CFTC for Noncompliance With Multiple Regulatory Requirements and Allegedly Filing Misleading Annual Compliance Reports” in the November 11, 2018 edition of Bridging the Week.)
More recently, in September 2019, RBC Capital Markets, LLC – a registered futures commission merchant and a wholly owned indirect subsidiary of the Royal Bank of Canada – agreed to pay a fine of US $5 million to the CFTC for allegedly engaging in 385 instances of wash sales involving exchange for physical transactions in interest rate products from December 2011 through October 2015.
In addition to charging RBCCM with violations of applicable law and relevant CFTC regulations for failure to supervise, wash sales and conducting EFPs not in accordance with CME rules, the Commission claimed that the firm failed to disclose certain material compliance issues in its 2015 and 2016 CCO annual reports, among other violations. (Click here for additional background in the article “CFTC Settles Avalanche of Enforcement Actions Alleging Failure to Supervise, Spoofing, Reporting Violations and Providing Misleading Information to the CFTC and FCMs” in the October 6, 2016 edition of Bridging the Week; see section “Purported Failure to Supervise”.)
At the same time the CFTC filed its enforcement action against RBCCM, it announced enforcement actions against two other registrants. In all three actions, the CFTC singled out the acts of the compliance department and/or a compliance officer as contributing to a registrant’s alleged substantive violations.
In an action against the Northern Trust Company, a provisionally registered swap dealer, the CFTC charged the firm with a failure to comply with certain reporting requirements under CFTC rules. The Commission claimed that Northern Trust’s purported reporting issues were attributable to its “failure to devote adequate attention and resources to reporting solutions.” In addition to reporting violations, the CFTC charged Northern Trust with failure to supervise. The CFTC said that the swap dealer’s supervisory breakdown was aided, in part, because the firm “repeatedly hired compliance personnel for the [swap dealer] who possessed some financial industry and regulatory experience, but lacked the specific technical expertise necessary to ensure [swap dealer] compliance.” (For more details, reference the article in Bridging the Week identified above; see section “Claimed Reporting Infractions”.)
Likewise, the CFTC brought and settled enforcement actions against Classic Energy LLC, a registered introducing broker, and Matthew Webb, its former founder, president and sole member, for purportedly defrauding Classic’s customers by executing 63 block trades between customers and a Classic proprietary account based on nonpublic information and for trading opposite Classic’s customers in block trades without disclosing that Classic was acting as a counterparty and not as a broker – the category the clients expected. The CFTC charged Classic with failure to maintain records of block trades and failure to supervise. Among other things, the CFTC claimed that Classic’s compliance officer did not conduct sufficient checks of a system used by a third party retained to maintain audio recordings of block trades for Classic to ensure that communications were being prepared and maintained as required.
Classic and Mr. Webb agreed together to pay an aggregate fine of US $1.5 million to resolve the CFTC’s enforcement action. (For more details, reference the article in Bridging the Week identified above; see section “Misappropriation Charged”.)
Although the CFTC did not bring any enforcement proceedings against any person acting solely as a compliance officer for alleged wrongdoing during its FY 2019 despite highlighting potential issues, the DFSI action against Ms. Waterhouse provides a stark reminder of regulators’ evolving expectations of senior compliance officers and the potential consequences – in at least one jurisdiction – of not meeting those expectations. Indeed, the Securities and Exchange Commission has on multiple occasions during the past few years filed enforcement actions against persons acting solely as compliance officers for their purported role in their employers' regulatory offenses. (For examples, click here to access the article "One CCO Sanctioned, Another Not, in SEC Enforcement Actions" in the August 14, 2015, edition of Bridging the Week and here to see the article "Investment Adviser Chief Compliance Officer Blamed in SEC Lawsuit for President's Theft of Client Funds" in the June 21, 2015 edition of Bridging the Week.)
Previously, the SEC charged that defendants’ offering and sale of “Gram” cryptoassets during the first quarter of 2018 constituted a securities offering that was not appropriately registered, while defendants claimed their first quarter activities constituted the lawful offer and sale of an investment contract that was validly exempt from registration and that contemplated the ultimate delivery of cryptoassets – Grams – when (and if) the relevant blockchain was functional that would be virtual currencies and not securities. (Click here for background regarding the SEC’s enforcement action in the article “Messaging Service Company Denies SEC’s Claim That Sale and Issuance of Cryptocurrency Constitutes Unlawful Security Offering” in the November 17, 2019 edition of Bridging the Week.)
Both the SEC and defendants sought immediate resolution of the Commission’s enforcement action consistent with their respective views without further judicial proceedings.
In its brief supporting its motion, the SEC principally claimed that Grams were investment contracts when offered and sold, and would continue to be investment contracts when delivered to its purchasers – even though the SEC did not challenge that the purchasers were lawfully exempt persons in connection with an exempt offering. The SEC rested its argument on its claim that the initial coin offering “was the quintessential transaction where investors funded a company’s growth hoping to profit from its continued efforts and future successes.” The SEC claimed that defendants chose initial investors not because they intended to use their Grams to stake or validate new blocks on Telegram’s proposed blockchain, but because they were institutional investors and funds looking to profit from later resales. The defendants in their papers conceded that they offered and sold investment contracts pursuant to a lawful exemption from registration, but argued that when Grams were to be delivered they would be virtual currencies and not securities and therefore not under the jurisdiction of the SEC. This was because, among other things, at such time, defendants would have no role in maintaining the open-source blockchain that supported Grams.
Defendants also argued that the SEC’s attention on early purchasers of investment contracts during 2018 was irrelevant. Instead, “[t]he relevant question here is how Defendants are marketing Grams to potential public buyers and what those buyers’ reasonable expectations will be when Grams are issued upon launch of the blockchain” which was anticipated in Fall 2019. According to defendants, Grams were marketed to such persons as a virtual currency.
The SEC’s enforcement action is being heard by a federal court in New York City.
In other legal and regulatory developments regarding cryptoassets:
My View: As both SEC Chairman Jay Clayton and Director of the SEC’s Division of Corporation Finance, as well as the SEC’s Strategic Hub for Innovation and Financial Technology, have acknowledged, the nature of a cryptoasset can evolve over time. (Click here for background in the article “SEC Staff Outlines Characteristics of Cryptoassets That Could Cause Them to Be Regarded as Securities” in the April 7, 2019 edition of Bridging the Week.) A cryptoasset might be regarded as an investment contract, and thus a security, during one interval in its existence, but evolve over time to be considered a virtual currency at a later stage; ether is an example of such a cryptoasset.
Given the SEC’s Chairman’s and staff’s prior statements, the Commission’s position in its brief supporting its motion for summary judgment in the Telegram case seems disingenuous. Moreover, its assertion that initial investors did not purchase Grams with the ultimate intent to stake their digital coins on a blockchain in order to support an argument that Grams would always be securities seems far-fetched and an incredulous leap in a tortuous climb to support its views.
According to CME Group, this same provision will soon be adopted by all US designated contract markets. CME Group said that “[t]he provision is being adopted to ensure that DCMs have the ability to gather information from the intermediaries including, but not limited to, information on the firm’s clients and the firm’s practices with respect to its clients.”
As with other DCMs, CME Group exchanges’ exercise jurisdiction over members and non-members, and require cooperation and participation in investigatory and disciplinary processes. The CME Group’s new provisions are scheduled to be effective February 3, 2020, absent objection by the Commodity Futures Trading Commission.
Legal Weeds: Under applicable law, designated contract markets like CME Group exchanges must establish and enforce disciplinary procedures that authorize them to “discipline, suspend or expel members or market participants” that violate the exchanges rules. (Click here to access 7 U.S.C. § 7(d)(13).) Separately, DCMs must have the capacity to detect, investigate and apply appropriate sanctions “to any person” that violates any DCM rule, and to obtain necessary information to ensure compliance with their rules. (Click here to access 7 U.S.C. §§ 7(d)(2)(B and C).) However, on their face, these provisions’ references to “members or market participants” and “any person” are somewhat inconsistent – any person is a much broader concept than members or market participants.
In response, the CFTC appears to have opted for a narrow view of the reach of the applicable law by requiring DCMs “[p]rior to granting any member or market participant access to its markets” to have such specifically identified persons consent to its jurisdiction. The CFTC in its rules does not define “market participant.” (Click here to access CFTC Rule 38.151.)
CME Group exchanges have relied on the relevant CFTC rule in proposing to expand the reach of their jurisdiction to certain intermediaries. However, it is not clear that the CME Group's proposed extension of its jurisdictional reach as currently proposed is fully supported by the relevant CFTC rule which itself seems to rest on somewhat inconsistent provisions of law.
Because NFA members may not conduct business with persons required to be NFA members who are not, NFA also reminded members of their obligation to take reasonable steps to try to ensure that unregistered persons they conduct business with who act as CPOs or CTAs are lawfully exempt from registration. In its advisory, NFA recommended specific measures such NFA members could take to try to ensure that such unregistered persons were lawfully exempt during the interim period through March 2. These include requesting a written representation setting forth the basis for such person’s exemption and evaluating the response’s reasonableness.
For further information:
Canadian Regulators Issue Guidance Describing When Entities Facilitating Digital Asset Transactions Implicate Securities Laws:
CME Group Exchanges Propose Expanding Jurisdiction Over Non-Members to Include All Compensated Intermediaries:
FCA Designated AML Supervisor of Many UK Digital Asset Activities:
Investment Bank Compliance Officer Fined by Dubai Regulator and Banned From Working in Dubai Financial Centre for Providing Allegedly False Information:
NFA Reminds Persons Claiming Exemptions From CPO and CTA Registration to Reaffirm and Members Doing Business with Such Persons to Be Proactive:
Non-US-Based Company Fined US $700,000 for Purported Spoofing Trading by Employee; Fine Lowered for Cooperation:
SEC Sues Convicted Criminal for Alleged ICO Scam:
SEC Warns Consumers: Be Mindful of IEOs (Another Digital Asset Acronym):
Security or Virtual Currency?: Online Messaging Company and SEC File Competing Motions to Resolve ICO Enforcement Action Based on Different View of Same Cryptoasset: