Bridging the Week by Gary DeWaal

Bridging the Week by Gary DeWaal: August 17 - 21 and 24, 2015 (Block Trades, Front Running, Failure to Supervise, Conflicted Audit, Exempt Clearinghouse)

AML and Bribery Bridging the Week Chief Compliance Officers Cleared Swaps Compliance Weeds Exchanges and Clearing Houses Federal Energy Regulatory Commission Foreign Corrupt Practices Act Legal Weeds Letters to the Editor Manipulation Supervision Systems and Controls Trade Practices (including Disruptive Trading)

Published Date: August 23, 2015

Last week was a week of many firsts in the exchange-traded and centrally cleared derivatives industry in the United States. CME Group brought its first actions against an employer for allegedly failing to supervise an employee engaging in disruptive trading activities, while both an employer and its employee were charged for allegedly pre-hedging block trades. Separately, the CFTC granted its first exemption from registration to an overseas clearinghouse clearing swaps for certain US persons, while the Commission also brought its first case against a swap dealer under its new failure to supervise provision intended solely for swap dealers and major swap participants. As a result, the following matters are covered in this week’s edition of Bridging the Week:

CME Group Files Disciplinary Actions for Trading Ahead of Block Trades and Failure to Supervise an Employee Engaging in Disruptive Trading Activities (includes Compliance Weeds);
CFTC Settles Enforcement Action Against FCStone Markets for Unauthorized Swaps Transactions of Former Trader (includes Legal Weeds);
Promontory Financial Agrees to Pay US $15 Million to Resolve Allegations Regarding Conflicted Audit;
ASX Clear Approved as Exempt Clearinghouse for Swaps by CFTC;
OIG Criticizes CFTC’s DMO for Inadequate Rule Enforcement Reviews, Blames Insufficient Staff;
Student Internships Result in Bank’s Settlement With SEC Over Alleged FCPA Violations;
Broker-Dealer Fined US $15 Million for Compliance and Surveillance Failures Related to Handling of Nonpublic Information;
CFTC Proposes Changes to Swap Data Recordkeeping and Reporting Requirements; and more.

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CME Group Files Disciplinary Actions for Trading Ahead of Block Trades and Failure to Supervise an Employee Engaging in Disruptive Trading Activities

In two cases of first impression, CME Group exchanges brought and settled charges against a company for alleged disruptive trading activities by its employee, and against another company and its employee for the employee’s alleged pre-hedging of block trades entered into for his employer.

In a disciplinary action brought by the New York Mercantile Exchange, Banco BTG Pactual, S.A. agreed to pay a fine of US $50,000 for the alleged disruptive trading activities of an unnamed employee. According to the exchange, on multiple occasions from January 2013 through February 2014, the employee entered into orders in Palladium futures contracts on one side of the market without the intent to trade. Instead, said NYMEX’s Business Conduct Committee, the orders were entered into to induce market participants to trade opposite smaller orders entered by the trader that were resting on the opposite side of the order book. The trader allegedly cancelled the larger orders on one side of the market after he obtained fills of the smaller orders on the other side. NYMEX’s BCC said, “BTG failed to ensure that its trader conducted these trading activities in compliance with exchange rules.”

In another disciplinary action brought by NYMEX, Koch Supply & Trading, LP and its trader Arian Fouquet settled charges alleging that, on four dates in January 2014, Mr. Fouquet used CME Group’s Globex platform to pre-hedge block trades with a proposed counterparty, prior to concluding such transactions with the counterparty.

NYMEX specifically claimed that, after being solicited to enter into a block trade, Mr. Fouquet pre-hedged the proposed transaction on Globex in order to lock in a potential profit for his employer. This violated CME Group’s prohibition against using nonpublic information regarding block trades prior to execution.

To resolve this matter, Koch agreed to pay a fine of US $50,000 and disgorge profits of $51,315.60. Mr. Fouquet agreed to pay a fine of US $15,000 and be barred from trading CME Group products for five business days.

In other disciplinary actions, Wolverine Trading, LLC settled charges related to the alleged breakdown of its automated trading system and unintended self-matches.

In one action brought by the Chicago Mercantile Exchange, Wolverine agreed to pay a fine of US $125,000 for an alleged breakdown of its ATS on March 21, 2014, that resulted in the firm sending over 27,000 resend requests to the exchange (a resend request is a repetitive transmission to the exchange of the same message (e.g., order, request for quote); it can increase latency for other traders). Apparently, the exchange endeavored to contact Wolverine on the relevant date to ameliorate the situation, but was unsuccessful; the exchange ultimately closed all of the firm’s access ports to it in order to stop the resend requests. According to CME’s BCC, “Wolverine’s monitoring and internal notification processes were insufficient to recognize or stop the ATS from continuing to submit resend requests.”

Wolverine also settled charges in response to three separate disciplinary actions brought by the Chicago Board of Trade, CME and NYMEX, that on “several occasions” in 2012 and 2013 it failed to prevent buy and sell orders generated by its ATS from crossing. The relevant BCCs found that, although the firm’s ATS was not “designed to execute self-matches,” Wolverine should have reasonably anticipated that orders entered by the ATS would match. The BCCs found that Wolverine did not implement “effective functionality” to avoid self-matches. Wolverine paid US $125,000 in aggregate to resolve these matters.

CME Group also announced settlements of three other matters involving alleged disruptive trading practices. Two involved William Silva, who settled his actions by agreeing to pay an aggregate fine of US $75,000 and to incur a two-week CME Group trading suspension. The other involved Michael Franko, who settled his matter by agreeing to pay a fine of US $100,000 and to serve a three-week CME Group trading suspension.

Finally, two firms – Blenheim Capital Management, LLC and Noble Americas Corp. — agreed to settle charges they engaged in improper exchange for related position transactions by not having proper documentation to support the related position, or not transferring the related position between the two parties. Blenheim agreed to pay a fine of US $10,000 in connection with two EFRPs, while Noble, in connection with two disciplinary actions, agreed to pay fines in aggregate of US $30,000 for two EFRPs too.

Compliance Weeds: Rules on block trades are detailed and must be followed strictly. CME Group Rule 526, for example (click here to access), expressly prohibits “[p]re-hedging or anticipatory hedging of any portion of a block trade in the same product or a closely related product based upon a solicitation to participate.” Moreover, parties involved in the solicitation or negotiation of a block trade may not disclose any elements of those discussions to any other party except as necessary to consummate the transaction. In general, parties with access to nonpublic information regarding a block trade may not trade in the same product or any closely related product to take advantage of such knowledge in advance of the public report of the block trade to the exchange. This prohibition is not meant to preclude parties from trading in their ordinary course, however. (Click here for the latest CME Group advisory notice regarding block trades.)

Briefly:

CFTC Settles Enforcement Action Against FCStone Markets for Unauthorized Swaps Transactions of Former Trader: The Commodity Futures Trading Commission charged INTL FCStone Markets, LLC with failure to adequately supervise the swaps trading activities of Gregory Evans, one of its former swap traders, and other members of its Kansas City energy group. Mr. Evans is alleged to have entered into 30 unauthorized bilateral swaps transactions with one customer from January through July 2013. The CFTC specifically claimed that FC Stone failed to (1) provide adequate oversight of Mr. Evans and the other members of the energy group; (2) maintain adequate policies and procedures to ensure that discretionary trading for customers was appropriate and adequately controlled; and (3) implement existing policies and procedures that required an individual with supervisory duties to work on the energy’s group swaps sales desk. The CFTC settled its action against FCStone with the firm’s agreement to pay a fine of US$ 200,000. Two months ago, the CFTC settled charges previously filed against Mr. Evans for his alleged unauthorized swap transactions. The alleged unauthorized trades were claimed to have caused approximately US $1.2 million in trading losses for the aggrieved customer that were later reimbursed by FCStone. The CFTC acknowledged FCStone’s cooperation in its review; its reimbursement of the customer; and its implementation of unspecified recommendations made the by Commission’s Division of Swaps and Intermediary Oversight. This was the first case that the CFTC has brought under its new express failure to supervise authority applicable to swap dealers and major swap participants. (Click here for further background on Mr. Evans alleged infractions in the article “FCM Broker Fined US $1.2 Million by CFTC for Unauthorized Swaps Trading for Customer” in the June 21, 2015 edition of Bridging the Week.)

Legal Weeds: In a complaint of first impression, FCStone was charged by the Commission with a violation of its new Rule 23.602(a), which requires all swap dealers and major swap participants to “establish and maintain a system to supervise, and shall diligently supervise, all activities relating to its business performed by its partners, members, officers, employees, and agents” (emphasis added). (Click here to access the full text of CFTC Rule 23.602(a).) This provision sets forth different standards than the CFTC’s traditional supervisory requirements for registrants under its Rule 166.3. That provision does not expressly require registrants to establish a supervisory system. It solely states that “[e]ach Commission registrant, except an associated person who has no supervisory duties, must diligently supervise the handling by its partners, officers, employees and agents … of all commodity interest accounts carried, operated, advised or introduced by the registrant, and all other activities of its partners, officers, employees and agents … relating to its business as a Commission registrant.” (Click here to access the full text of CFTC Rule 166.3.) However, in its FCStone Order, the Commission noted that Rule 166.3 “has been interpreted as requiring that, in order to establish a failure to supervise, the Commission establish that a registrant’s supervisory system was generally inadequate or that the registrant failed to perform its supervisory duties diligently” (emphasis added). Although it seems reasonable that a registrant should have robust policies and procedures to help ensure it can adequately oversee its business, this is different than saying the rule requires a supervisory system when, by its plain language, it does not. This incongruity seems clearer now that Rule 23.602(a), in fact, imposes such an express requirement.

Promontory Financial Agrees to Pay US $15 Million to Resolve Allegations Regarding Conflicted Audit: Promontory Financial Group agreed to pay a US $15 million fine in order to resolve certain allegations made against it by the New York State Department of Financial Services. Just two weeks ago, the NYSDFS issued a report stating that Promontory “exhibited a lack of independent judgment” in connection with a review of the compliance by Standard Chartered Bank, one of its clients, with anti-money laundering requirements on which the NYSDFS relied. The NYSDFS also claimed that certain testimony by Promontory witnesses during the course of the department’s investigation into the firm’s conduct “lacked credibility.” When it issued its report, the NYSDFS said it would deny all requests to provide the firm with confidential supervisory information “until further notice.” In settling this matter, Promontory acknowledged that “[i]n certain instances” its review of Standard Chartered “did not meet the Department’s current requirements for consultants performing regulatory compliance work for entities supervised by the Department.” Promontory agreed that, going forward “any report it submits to the Department must be objective and reflect its best independent judgment.” To settle this matter – which never took the form of a complaint or a formal administrative action of any kind— Promontory also agreed not to take on any new consulting arrangements for six months that requires it to obtain confidential information under New York law. (Click here for further background on the charges against Promontory in the article “New York Regulator Penalizes Promontory Financial for Alleged Lack of Independent Judgment in Handling Standard Chartered Bank Review” in the August 14, 2015 edition of Bridging the Week.)
ASX Clear Approved as Exempt Clearinghouse for Swaps by CFTC: ASX Clear (Futures) Pty Limited received the first order of exemption from registration as a derivatives clearing organization by the Commodity Futures Trading Commission in connection with its clearing of certain swap transactions for certain US persons. The order extends solely to the proprietary swap positions of US clearing members or any US affiliate of a non-US clearing member, including for (but not limited to) interest rate swaps denominated in US dollars, Euros, Japanese yen, British pounds, Australian dollars and New Zealand dollars. In order to maintain its exemption, ASX Clear must, among other things, within 60 days of each of its fiscal-year ends, (1) certify to the CFTC that it continues to comply with best practice principles for market infrastructures adopted by the Committee on Payments and Settlement Systems and the International Organization of Securities Commissions in April 2012 (click here to access), and (2) cause its home country regulator to represent in writing it remains in good standing. ASX is also required to make certain ongoing reports to the CFTC, some as frequently as daily.
OIG Criticizes CFTC’s DMO for Inadequate Rule Enforcement Reviews, Blames Insufficient Staff: The Office of Inspector General criticized the designated contract market rule enforcement review process of the Division of Market Oversight of the Commodity Futures Trading Commission in a performance audit issued on August 5, 2015. The fieldwork for the audit had been contracted by OIG to Castro & Company LLC. In general, OIG said that DMO did not review, as part of rule reviews, 16 of the 23 core principles required for DCMs by the CFTC. OIG also said DMO should enhance it policy and procedure to select the frequency of DCM reviews; improve its follow-up on prior recommendations to DCMs; and hire more staff to enhance the timeliness of completing rule reviews. In response, DMO suggested that certain core principle reviews (e.g., system safeguards and financial resources) are more efficiently conducted outside of formal rule reviews and that DCMs are selected for review based on trading volume. DMO disagreed with OIG’s assessment of how it follows up on prior recommendations to DCMs (however, it did say it would better maintain evidence of its follow-up) and agreed that it needs more staff.
Student Internships Result in Bank’s Settlement With SEC Over Alleged FCPA Violations: The Bank of New York Mellon Corporation agreed to pay sanctions of almost US $15 million to resolve allegations by the Securities and Exchange Commission that its retention of three interns during 2010 and 2011 constituted violations of the anti-bribery and internal accounting control provisions of the Foreign Corrupt Practices Act. The SEC claimed that, in order to maintain and expand business with an unidentified Middle Eastern sovereign wealth fund, BNY agreed to retain three family members of two government officials who were both senior officials affiliated with the sovereign wealth fund. None of the interns, claimed the SEC, met the “rigorous criteria” of the internship program ordinarily administered by BNY. BNY violated relevant law, claimed the SEC, by “providing valuable internships to relatives of foreign officials … to assist [it] in retaining and obtaining business,” and by not having a system of internal accounting controls “sufficient to provide reasonable assurance that its employees were not bribing foreign officials.” One of the interns was unpaid. To resolve this matter, BNY agreed to pay a fine of US $5 million, disgorgement of US $8.3 million, and pre-judgment interest of US $1.5 million.
Broker-Dealer Fined US $15 Million for Compliance and Surveillance Failures Related to Handling of Nonpublic Information: Citigroup Global Markets, Inc., a registered broker-dealer and investment adviser, agreed to pay a fine of US $15 million to resolve allegations by the Securities and Exchange Commission that it did not enforce policies and procedures to detect and prevent securities transactions based on the use of material, nonpublic information. According to the SEC, from 2002 through 2012, the firm’s surveillance system was “inadequate” because it did not monitor “thousands” of trades executed by some of its trading desks. This failure occurred, said the SEC, because of programming errors that caused the system to omit critical information from several sources. As a result, claimed the SEC, Citigroup routed over 467,000 transactions on behalf of advisory clients to an affiliated market maker that were executed on a principal basis without ever telling its customers of such an arrangement. Such disclosure was required by law, said the SEC. Citigroup previously had disgorged its profits from these trades (US $2.5 million) to its clients.
CFTC Proposes Changes to Swap Data Recordkeeping and Reporting Requirements: The Commodity Futures Trading Commission proposed to amend certain of its rules regarding recordkeeping and reporting requirements for cleared swaps. These rules were adopted in December 2011 as part of the Commission’s implementation of parts of the Dodd-Frank Wall Street Reform and Consumer Protection Act. Among other things, the proposed rules address obligations of the different parties when a swap is initially entered into bilaterally and subsequently cleared by a derivatives clearing organization. The proposed amendments address creation, confirmation and continuation data reporting requirements, among other matters. The CFTC also proposed to codify certain no-action letters to eliminate the requirement for swap dealers and major swap participants to report data valuation data for cleared swaps. According to CFTC Chairman Timothy Massad, if adopted, the proposed amendments “will improve data quality and reduce compliance costs, by clarifying and simplifying some requirements and eliminating unnecessary obligations.” Commissioner J. Christopher Giancarlo supported the proposed reporting amendments but suggested that the CFTC “take the same approach with other rule sets, including several of its swaps trading rules, to optimize the CFTC’s swaps regulatory framework.” Comments will be due by 60 days after publication of the proposed amended rules in the Federal Register. (Click here for further information on the CFTC proposal in the article “CFTC Proposes Cleared Swap Reporting Amendments” in the August 21, 2015 edition of Corporate & Financial Weekly Digest by Katten Muchin Rosenman LLP.)

And more briefly:

European Systemic Risk Overseer Recommends Skin in the Game for Clearinghouses: The European Systemic Risk Board recommended that the European Market Infrastructure Regulation – Europe’s partial equivalent of Title VII of the Dodd-Frank Wall Street Reform and Consumer Protection Act – should be enhanced to require clearinghouses to use their own capital (so-called “skin in the game”) as part of the waterfall utilized to recover from the default of one or more clearing members. According to the ESRB, the amount of skin in the game should be aligned to “the level of the [clearinghouse’s] clearing activity in order to ensure that these incentives are in some way proportionate to the quantitative dimension of the risks it manages.” The ESRB is part of the European system of financial supervision that, following the 2008 financial crisis, was entrusted to ensure supervision of the European Union’s financial system. It is specifically responsible for helping to prevent or mitigate systemic risks to financial stability within the EU.
Funds Marketed as Safe and Low Risk Cost Citigroup Affiliates US $180 Million as a Result of SEC Charges: Two Citigroup entities agreed to settle charges by the Securities and Exchange Commission that they defrauded investors in two now-defunct hedge funds when they said they were “safe,” “low risk” and “bond substitutes” for traditional bond investors, when in fact there were at significant risk of loss because of the funds’ investment strategy and leverage. The funds were principally marketed from 2002 through 2007. The two entities were Citigroup Alternative Investments LLC and Citigroup Global Markets Inc. The firms agreed to disgorge profits of almost US $140 million and pay pre-judgment interest of almost US $40 million to resolve this matter.
CFTC Seeks Comments on KRX Petition to Be Exempt From DCO Registration for Swaps: The Korean Exchange has filed a petition with the Commodity Futures Trading Commission for exemption from registration as a derivatives clearing organization to clear swaps transactions for certain US persons. Comments will be accepted through September 1, 2015.
CPMI and IOSCO Issue Recommendations on Unique Transaction Identifiers: The Committee on Payments and Market Infrastructures and the Board of the International Organization of Securities Commissions issued a consultative report seeking input on guidance to develop a global unique transaction identifier regime. The goal of the two regulator organizations is “to produce clear guidance on UTI definition, format and usage that meets the needs of UTI users, is global in scale, based on relevant (International Organization of Standardization) technical standards where available and jurisdiction agnostic.” Harmonization of data elements reported to trade repositories is seen as very important by regulators in order to achieve their objective of improved transparency related to over-the-counter derivatives contracts. Comments will be accepted by CPMI and IOSCO through September 30, 2015. CPMI, whose membership includes 25 central banks, endeavors to promote the safety and efficiency of payment, clearing settlement and related arrangements worldwide. IOSCO is an organization of international securities regulators.
Court Approves MF Global Inc. Trustee to Make Final Distribution to Unsecured General Creditors: The Trustee for the Liquidation of MF Global Inc. – the defunct futures commission merchant that filed for bankruptcy in October 2011 – received approval from the US Bankruptcy Court overseeing its dissolution to make a final, cumulative 95 percent distribution on all allowed general unsecured creditor claims. (Click here for details regarding the proposed distribution in the article "Defunct FCM MF Global to Pay Unsecured Creditors up to 95% of Their Allowed Claims" in the July 26, 2015 edition of Bridging the Week.) The Trustee expects to begin distributing proceeds after September 7, 2015.

And finally, Letters and Comments:

BP and Charge of Manipulation: In response to last week’s article entitled “ALJ Upholds Natural Gas Manipulation Charges Against BP by FERC” (click here to access), the following statement was received on behalf of Geoff Morrell, BP’s Senior Vice President of US Communications & External Affairs: “We strongly disagree with today's decision by the FERC Administrative Law Judge. As BP demonstrated at the hearing, the FERC enforcement staff’s allegations are entirely without merit. The evidence overwhelmingly demonstrated that BP’s natural gas traders did not engage in any market manipulation, and FERC has no jurisdiction over the trading at issue in any event. As the leading marketer of natural gas in North America, BP is committed to adhering to the highest ethical standards, conducting all trading in compliance with all laws and regulations, and maintaining a strong control and compliance environment. BP will appeal this decision to the full Commission, as required by federal administrative procedure law.”
CCO Liability: In response to the article two weeks ago entitled “One CCO Sanctioned, Another Not, in SEC Enforcement Actions” (click here to access), Felix Dashevsky, the General Counsel of Five Rings LLC, wrote, “The recent rise in the actions against CCOs (cf, eg, SFX CCO Eugene Mason case) has been concerning as it blurred the line between traditional advisory role of compliance officers with supervisory roles typically reserved for senior management. In these cases, CCO’s ‘supervision’ liability seems to extend to the entire organization, and be predicated on standards that border on strict liability. This raised a specter of ‘gatekeepers’ being liable for malfeasance of principals regardless of precautions they took, a perverse result. Even against this backdrop, however, the Judy Wolf decision goes too far the other way. A compliance officer found to have intentionally altered documents in anticipation of a regulatory review breaches the core traditional function of compliance, or, frankly, of any function. To impose no sanction here shows the lack of standards or rationality in the rule-making and adjudication. As I have stated previously, what is needed is a ‘business judgment rule’ for CCOs. In such a universe, Mr. Mason would not be charged, as he likely acted in good faith with reasonable care, whereas Ms. Wolf would be guilty, as she was found to have had neither.”

For more information, see:

ASX Clear Approved as Exempt Clearinghouse for Swaps by CFTC:
http://www.cftc.gov/ucm/groups/public/@otherif/documents/ifdocs/asxclearfutdcoexemptorder.pdf

Broker-Dealer Fined US $15 Million for Compliance and Surveillance Failures Related to Handling of Nonpublic Information:
http://www.sec.gov/litigation/admin/2015/34-75729.pdf

CFTC Proposes Changes to Swap Data Recordkeeping and Reporting Requirements:

Fact Sheet:
http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/clearedswap_factsheet081915.pdf
Proposed Rules:
http://www.cftc.gov/ucm/groups/public/@newsroom/documents/file/federalregister081915.pdf

CFTC Seeks Comments on KRX Petition to Be Exempt From DCO Registration for Swaps:
http://www.cftc.gov/PressRoom/PressReleases/pr7213-15#PrRoWMBL

CFTC Settles Enforcement Action Against FCStone Markets for Unauthorized Swaps Transactions of Former Trader:
http://www.cftc.gov/ucm/groups/public/@lrenforcementactions/documents/enforcementaction/enffcstoneorder081915.pdf

CME Group Files Disciplinary Actions for Trading Ahead of Block Trades and Failure to Supervise an Employee Engaging in Disruptive Trading Activities:

Banco BTG Pactual:
http://www.cmegroup.com/tools-information/lookups/advisories/disciplinary/NYMEX-14-9783-BC-1-BANCO-BTG-PACTUAL-S-A.html#pageNumber=1

Court Approves MF Global Inc. Trustee to Make Final Distribution to Unsecured General Creditors:
http://dm.epiq11.com/MFG/Project

CPMI and IOSCO Issue Recommendations on Unique Transaction Identifiers:
http://www.iosco.org/library/pubdocs/pdf/IOSCOPD500.pdf

European Systemic Risk Overseer Recommends Skin in the Game for Clearinghouses:
https://www.esrb.europa.eu/pub/pdf/other/150729_report_other_issues.en.pdf?7b57b5cb11bfab312dea0a6e0c462ecb

Funds Marketed as Safe and Low Risk Cost Citigroup Affiliates US $180 Million as a Result of SEC Charges:
http://www.sec.gov/litigation/admin/2015/33-9893.pdf

OIG Criticizes CFTC’s DMO for Inadequate Rule Enforcement Reviews, Blames Insufficient Staff:
http://www.cftc.gov/ucm/groups/public/@aboutcftc/documents/file/oig_auditruleenforcementreview.pdf

Promontory Financial Agrees to Pay US $15 Million to Resolve Allegations Regarding Conflicted Audit:
http://www.dfs.ny.gov/about/ea/ea150818.pdf

See also, Promontory Financial press release:
http://www.promontory.com/News.aspx?id=3946

Student Internships Result in Bank’s Settlement With SEC Over Alleged FCPA Violations:
http://www.sec.gov/litigation/admin/2015/34-75720.pdf

The information in this article is for informational purposes only and is derived from sources believed to be reliable as of August 21, 2015. No representation or warranty is made regarding the accuracy of any statement or information in this article. Also, the information in this article is not intended as a substitute for legal counsel, and is not intended to create, and receipt of it does not constitute, a lawyer-client relationship. The impact of the law for any particular situation depends on a variety of factors; therefore, readers of this article should not act upon any information in the article without seeking professional legal counsel. Katten Muchin Rosenman LLP may represent one or more entities mentioned in this article. Quotations attributable to speeches are from published remarks and may not reflect statements actually made.