Navinder Sarao, a London-based futures trader, appears closer to facing trial in the United States for his alleged spoofing and manipulation of E-mini S&P futures contracts traded on the Chicago Mercantile Exchange and his purported role in partly causing the May 2010 “Flash Crash,” following a judge’s ruling last week in his UK extradition hearing. Separately, one firm was fined for supposedly violating enhanced speculative position limits in wheat futures, while an affiliated company was sanctioned for purportedly filing misleading information with the Commodity Futures Trading Commission about the alleged violation. Also, a broker-dealer challenged in a federal court the authority of the Financial Industry Regulatory Authority to bring an administrative action against it based on its alleged violations of provisions of the first US federal securities law. As a result, the following matters are covered in this week’s edition of Bridging the Week:

• Alleged Spoofer, Blamed for Partly Causing Flash Crash, Loses UK Extradition Hearing (includes Legal Weeds);

• CFTC Fines One Firm for Purported Speculative Limits Violations and an Affiliated Entity for Allegedly Misleading Agency;

• Broker-Dealer Challenges FINRA’s Authority to Enforce Original Federal Securities Law;

• Two Related Swap Dealers Sanctioned by CFTC for Supposedly Not Fully Complying With Reporting Rules for Physical Commodity Swaps (includes Compliance Weeds and My View);

• UK Prudential Regulator Proposes Local Enhancements to European Regulations Governing Algorithmic Trading;

• CME Group Amends Position Limits Aggregation Rules to Conform With Pending CFTC Regulation Change (includes Compliance Weeds);

• Seven Foreign Nationals Charged With Cyber-Attack on 46 US Companies, Mostly in Financial Sector (includes Compliance Weeds);

• ICE Futures U.S. Proposes Revisions to Electronic Trading Access Rules to Better Reflect Actual Market Practices (includes Compliance Weeds); and more.

Article Version:

Alleged Spoofer, Blamed for Partly Causing Flash Crash, Loses UK Extradition Hearing

Navinder Sarao, the London-based futures trader who in April 2015 was sued by the Commodity Futures Trading Commission and criminally charged with contributing to the May 2010 “Flash Crash,” is closer to being extradited to the United States following a UK court’s decision last week. This is because the UK court found that the offenses for which Mr. Sarao was indicted in the United States – spoofing and engaging in manipulative conduct – would be prosecutable in the United Kingdom, albeit under different laws.

The CFTC charged Mr. Sarao and his trading company, Nav Sarao Futures Limited PLC, with engaging in spoofing involving E-mini S&P futures contracts traded on the Chicago Mercantile Exchange for the purpose of disrupting the market in order to facilitate related trading that netted him profits in excess of US $40 million. The alleged wrongful trading occurred between April 2010 and April 2015. In addition, the two defendants were charged with manipulation, attempted manipulation, and employing manipulative or deceptive devices or contrivances.

Mr. Sarao was also accused of wire and commodities fraud, spoofing, manipulation, and attempted manipulation in a criminal complaint in connection with the same activity. This action was filed in a US federal court in Chicago by the Department of Justice. The United States sought Mr. Sarao’s extradition in connection with this latter action.

Although the Hon. Quentin Purdy, the judge hearing Mr. Sarao’s case in the United Kingdom, made clear he was not evaluating the case on the merits to assess guilt or innocence, he did make certain findings in evaluating the extradition request. Among other matters, the judge concluded that

[e]mails sent by Navinder Sarao to his various programmers provide a powerful basis for concluding, absent any contradiction, that active market manipulation, including that known as spoofing, was expressly intended and was clearly known by him to be illegal.

Moreover, claimed the judge,

[w]hile all of Navinder Sarao’s contracts may have been at potential risk of execution, to his fiscal detriment, which is how the market operates, Navinder Sarao had adapted his software to minimise the risk way beyond ordinary market custom and practice.

However, the judge disputed allegations that Mr. Sarao “wholly or mostly” precipitated the May 5, 2010 “Flash Crash.” (The “Flash Crash” refers to events on May 6, 2010, when major US-equities indices in the futures and securities markets suddenly declined 5-6 percent in the afternoon in a few minutes before recovering within a similar short time period.)

The final decision on Mr. Sarao’s extradition will now be made by the UK Secretary of State who has two months to consider the DOJ’s request following the court’s ruling. Public reports indicate that Mr. Sarao will appeal the court’s decision.

Legal Weeds: Although not relevant in Mr. Sarao’s extradition hearing, the CFTC’s enforcement action against the trader is notable for the breadth of its legal theories. In its complaint, the CFTC charged Mr. Sarao with violating prohibitions against manipulation, attempted manipulation, disruptive trading (spoofing) and employing manipulative devices or contrivances. The criminal case against Mr. Sarao does not include charges of employing manipulative devices or contrivances, but instead additionally accused him of engaging in wire and commodities fraud. Unlike the alleged spoofing at issue by Michael Coscia, who recently was convicted of spoofing by a jury in Chicago, Mr. Sarao’s alleged wrongful conduct, claimed the CFTC, at least sometimes involved him repeatedly entering and rapidly cancelling a series of four to six large size sell orders in order to try to drive market prices down after previously selling an order, on the same side of the market, close to the market’s peak. When the market price subsequently collapsed, Mr. Sarao would offset his short position through a buy order at a lower price, alleged the CFTC, thereby profiting. Mr. Sarao would allegedly later further profit by buying at the lower price, and selling at a higher price after the market recovered. (Click here for details in the CFTC's complaint against Mr. Sarao at paragraph 54.) Mr. Coscia was charged with typically layering on one side of the market with large orders in order to influence market prices and then executing a small lot order on the opposite side of the market. Mr. Coscia would then purportedly reverse his trading process to liquidate his position in order to profit. (Click here to access background on Mr. Coscia’s conviction and the charges against him.)

Briefly:

• CFTC Fines One Firm for Purported Speculative Limits Violations and an Affiliated Entity for Allegedly Misleading Agency: The Commodity Futures Trading Commission filed and settled charges against Credit Suisse International for allegedly violating an augmented speculative position limit for wheat futures on several days in April and June 2009. The CFTC also filed and settled charges against Credit Suisse Securities (USA) LLC for purportedly filing certain false information with the CFTC related to the purpose of CSI’s wheat futures positions. In total, the two Credit Suisse entities agreed to pay a fine of US $665,000 to resolve the CFTC’s charges, including US $140,000 by CSS for its specific alleged violation. According to the CFTC, in September 2008, CSS requested the CFTC to grant CSI a hedge exemption to the Commission’s then prevailing 6500 contracts all-months speculative position limit in wheat futures. This request apparently was made to accommodate the firms’ clients that were liquidating commodity swap positions with certain counterparties experiencing financial difficulties during the 2008-2009 financial crisis, and re-establishing such position with CSI. The CFTC claimed that, despite granting CSS’s request for CSI, on several days during the relevant time CSI still exceeded its enhanced position limit. Subsequently, in March 2013, CSS, on behalf of CSS, submitted information to the CFTC that the agency alleged was different from information the firm contemporaneously provided the CFTC in 2009. The new information purportedly showed that CSI’s hedge exemption “would have been higher in April and June 2009 than was warranted by information submitted to the Commission in 2009.” Based on the new information, CSI would not have violated its augmented position limit at the relevant time. However, the CFTC claimed that new information was “materially false or misleading” by including inflated swaps information. Applicable law prohibits a person from making “any false or misleading statement of a material fact” to the CFTC. (Click here to access Section 6(c)(2) of the Commodity Exchange Act (see 7 U.S. Code §9(2).)

• Broker-Dealer Challenges FINRA’s Authority to Enforce Original Federal Securities Law: Scottsdale Capital Advisors Corporation, a Securities and Exchange Commission registered broker-dealer, and certain of its senior officers, sought an injunction in a federal court in Maryland against the Financial Industry Regulatory Authority from proceeding against them in a disciplinary action in FINRA’s administrative forum alleging their violations of the Securities Act of 1933. The Act was the first US federal securities law and generally addresses the issuance of securities, including imposing registration and disclosure requirements. Plaintiffs contend that FINRA has no authority to prosecute claims under the Securities Act because its disciplinary authority is limited to matters that might constitute violations of the Exchange Act of 1934, a provision of US law that established the SEC, authorizes national securities associations such as FINRA, and generally governs the secondary trading of securities, financial markets and their participants, including broker-dealers. FINRA commenced a disciplinary action against plaintiffs in May 2015, charging violations of a provision of the Securities Act that generally prohibits the public distribution of an unregistered security without an exemption. The firm was also charged with not maintaining a supervisory system reasonably designed to detect the alleged violations. As a result of their alleged wrongful conduct, plaintiffs were charged with violating a FINRA rule that requires a member to observe “high standards of commercial honor and just and equitable principles of trade." (Click here to access FINRA Rule 2010.) Plaintiffs argued that the federal court should grant their requested injunction without them first proceeding with the FINRA disciplinary action and permitted appeals through a FINRA administrative process, the SEC and then potentially a federal court. This is because, said the plaintiffs, their challenge is a jurisdictional challenge and “not the type of claim Congress directed only to the administrative system.”

• Two Related Swap Dealers Sanctioned by CFTC for Supposedly Not Fully Complying With Reporting Rules for Physical Commodity Swaps: JPMorgan Chase Bank, N.A. and JPMorgan Ventures Energy collectively agreed to pay a fine of US $225,000 to resolve charges brought by the Commodity Futures Trading Commission that, from at least March 1, 2013, through April 30, 2014, they failed to file accurate large trader reports with the CFTC as required by law, reflecting their reportable positions in physical commodity swaps. The CFTC alleged that, during this time, the entities’ LTRs “routinely contained errors,” and were not submitted at all on two days. According to the CFTC, during the relevant time the firms pro-actively advised the agency of issues with their LTRs and further researched and corrected their LTR reporting systems after staff of the CFTC advised them of potential noncompliance issues on January 2, 2014. The firms also submitted corrected historical LTRs after the CFTC notice. The CFTC alleged that the firms in their incorrect LTRs included the underlying commodity futures equivalent months and currency value strike price in the incorrect data fields; included incorrect futures contract equivalents, commodity units and notional value, or none at all; identified positions to the wrong legal entities; and inaccurately reported counterparty identities. Both JPMorgan entities were provisionally registered as swap dealers during the relevant time.

Compliance Weeds: Since July 2, 2012, swap dealers have been fully obligated to report to the Commodity Futures Trading Commission daily reports of their large positions in physical commodity swaps and swaptions in excess of certain thresholds. These reports must comply with all CFTC technical requirements. Previously, the CFTC indicated its intent to vigorously enforce breaches in swap reporting obligations when it sanctioned a major banking institution US $2.5 million for allegedly failing from January 2013 to July 2015 to accurately report all reportable swap transactions (including cancellation of prior swaps) to a swap data repository as soon as practicable after a transaction is executed. (For details, click here.)

My View: It appears from the CFTC order related to this matter that JPMorgan Chase Bank and JP Morgan Ventures Energy experienced inadvertent technical breakdowns with their reporting of physical commodity swaps for a little over one year. However, during this time, the firms regularly kept the CFTC apprised of their large trader reporting issues, identified and fixed their systemic problems, and submitted corrected reports after the fact. Although the CFTC acknowledged this exemplary response to a problem, it still determined to commence an enforcement action against the firms, and settle this matter for payment of a $225,000 fine. The CFTC states in its order that “[l]arge trader reporting for physical commodity swaps is essential to the Commission’s ability to conduct effective surveillance of markets in U.S. physical commodity futures and economically equivalent swaps.” Notwithstanding, one wonders whether this enforcement action represents the best deployment of scarce resources given the infancy of the CFTC’s swaps reporting regime, the acknowledged openness of the defendants regarding their reporting problems, and the defendants' subsequent repair of their systemic issues and corrected back-reporting.

• UK Prudential Regulator Proposes Local Enhancements to European Regulations Governing Algorithmic Trading: The UK Prudential Regulation Authority published proposed rules to implement the Markets in Financial Instruments Directive II and related provisions in the United Kingdom for entities under its supervisory jurisdiction, including special provisions related to algorithmic trading. These entities include banks, building societies and PRA-designated investment firms. Such entities would also be subject to rules adopted to transpose MiFID II by the Financial Conduct Authority. In general, said PRA, its proposal rules mirror those proposed by the FCA in December 2015, but reflect PRA’s different regulatory emphasis, namely ensuring the “safety and soundness” of firms it oversees, rather than preventing market abuse or disorderly conduct. In connection with its proposed rules, PRA seeks to ensure that for firms that engage in algorithmic trading their systems are “resilient and have sufficient capacity"; utilize “appropriate thresholds and limits;” and prevent “the sending of erroneous orders or contribute to a disorderly market.” Under the PRA’s proposed rules, a firm’s algorithmic trading systems must be fully tested and “properly” monitored. Firms will have additional recordkeeping requirements if they engage in high-frequency trading, and will have other requirements if they provide direct electronic access to trading venues. PRA will accept comments on its proposed rules through May 27, 2016.

• CME Group Amends Position Limits Aggregation Rules to Conform With Pending CFTC Regulation Change: The Chicago Mercantile Exchange Group proposed to amend its position limits and accountability rules to potentially permit accounts under independent control owned directly or indirectly by the same person or within the same legal entity or structure not to be aggregated to assess compliance with its position limits requirements (click here to access current CME Group Rules 559, 560 and 562 that address position limits and accountability). Generally, with the exception of certain accounts of eligible entities enumerated by the Commodity Futures Trading Commission (e.g., commodity pool operators, commodity trading advisors, banks, trust companies), a person must aggregate all accounts for which it directly or indirectly holds positions (e.g., through 10 percent or more ownership interest) or controls trading by power of attorney or otherwise. (Accounts that may be excluded from aggregation pursuant to CFTC rules must be traded by a so-called “independent account controller"; click here to access CFTC Rule 150.1(d) for details.) CME Group proposes that accounts owned directly or indirectly by the same person or within the same legal entity or structure may be deemed independently controlled, if the accounts’ traders do not have knowledge of each other’s trading decisions; trade according to separate strategies; and implement and enforce written procedures that “...preclude each from having knowledge of, gaining access to or receiving data concerning the trades of the other.” Such relief – which would have to be applied for in advance – would apply only to CME Group products not subject to CFTC limits. CME Group’s disaggregation proposal is modeled after a similar CFTC proposal made in September 2015, but not yet adopted. CME Group’s rule proposal resembles a similar rule adopted by ICE Futures U.S. earlier this month. CME Group’s proposed amendments are scheduled to be effective April 4, 2016, absent CFTC objection.

Compliance Weeds: CME Group’s proposed disaggregation rule is similar but not identical to ICE Futures U.S.’s recently adopted disaggregation rule. Under CME Group’s proposed rule, procedures adopted by independent account controllers to evidence independence “must include document routing and other procedures or security arrangements, including separate physical locations, which would maintain the independence of their activities.” IFUS’s rule does not prescribe any specific elements of the procedures to evidence independence. However, IFUS’s rule expressly states that there may be “no sharing of personnel controlling the respective trading decisions.” As a result, firms designing compliant programs for both the CME Group and IFUS should aggregate the requirements of each exchange in their overall procedures.

• Seven Foreign Nationals Charged With Cyber-Attack on 46 US Companies, Mostly in Financial Sector: Seven Iranian nationals were criminally charged by the US Department of Justice with engaging in cyber-attacks on 46 major US-based corporations, principally in the financial sector, from late 2011 through mid-2013. The attacks, which allegedly occurred on more than 176 days, involved so-called “DDoS” or distributed denial of service attacks. Through these attacks, the defendants sought to flood the targeted companies’ computer servers with bogus messages, preventing customers of the companies from conducting ordinary business. Among companies purportedly impacted detrimentally by the attacks were Bank of America, NA, NASDAQ, New York Stock Exchange, Capital One Bank, ING Bank, U.S. Bank, NA, Fidelity National Information Services, and PNC Bank. None of the attacks on any company resulted in the theft of customer account data, however, said the DOJ. The criminal indictment against the defendants also charged that they attacked the computer systems of a dam in Rye, NY (Bowman Dam). The DOJ seeks the defendants’ imprisonment if convicted, and their forfeiture of any personal property used to facilitate the alleged wrongdoing. The indictment against the defendants claims they all had ties to the Islamic Revolutionary Guard in Iran. The DOJ in a press release said the DDoS attacks “cost the banks tens of millions of dollars in remediation costs … to neutralize and mitigate the attacks on their servers.”

Compliance Weeds: As I have written before, there are only two types of firms that use computer systems today for their businesses: those that have had experienced cyber-attacks and know about them, and those that have experienced cyber-attacks and don’t know about them. All firms should be mindful of their risk of cyber-attacks and should have implemented by now and maintain an appropriate cybersecurity program. As of March 1 this year, all members of the National Futures Association are required to have implemented and enforce an information systems security program commensurate with their size, customer base and product access. (Click here for details of NFA’s requirements.) NFA’s general requirements are not unique and are typical of requirements increasingly being mandated in form or substance for financial services companies globally either expressly, as recommended practices or otherwise.

• ICE Futures U.S. Proposes Revisions to Electronic Trading Access Rules to Better Reflect Actual Market Practices: ICE Futures U.S. proposed changes to its rules regarding electronic trading to better conform its requirements to market practices, particularly regarding the nature of persons granted direct market access by clearing members. Currently, IFUS’s rules mostly speak in terms of customers of clearing members having DMA. However, said IFUS, many other types of persons have DMA including “brokers executing for customers, persons trading accounts to a power of attorney and employees of firms with direct access, who do not have their own accounts.” Although IFUS’s rules mostly amend existing language to expand the requirements’ application, one amendment adds an additional requirement on clearing members. This provision will now require such firms to “independently maintain appropriate controls designed to facilitate the Clearing Member’s management of financial risk and also utilize such controls designed to facilitate the Clearing Member’s management of financial risk as may be provided by the Exchange from time to time” (new language highlighted; underscored new language emphasized). IFUS’s proposed electronic trading rule amendments are scheduled to be effective April 11, 2016, absent objection by the Commodity Futures Trading Commission.

Compliance Weeds: Separate and apart from ICE Futures U.S.’s proposed amendments to its electronic trading rules, clearing members granting direct access to persons should be aware of two critical existing obligations. Under IFUS’s rules, clearing members must suspend or terminate the direct access of a person if the clearing member has reason to believe that the person “fails to have adequate systems and controls for risk management to monitor its orders and trades effected through Direct Access on a real time basis” (emphasis added) or if actions of the person “threaten the integrity or liquidity of any exchange Contract” or violate applicable law or IFUS rules.

And more briefly:

• SEC Inks Settlement Agreements With Seven Defendants Accused of Trading on Hacked News Releases: The Securities and Exchange Commission agreed to a settlement with seven of the 32 defendants charged in August 2015 with allegedly trading on illicitly hacked news releases. According to the SEC, Ivan Turchynov and Oleksandr Ieremenko, both from the Ukraine, masterminded the scheme by hacking into the newswire companies’ servers from 2010 through 2015 to steal press releases regarding publicly traded companies before they were made public. Nine of the defendants in the SEC action were also criminally indicted. Subject to court approval, the seven defendants will pay almost US $18 million to resolve the SEC charges against them.

• FATF Updates List of Jurisdictions With Material AML/CFTC Deficiencies: The Financial Action Task Force updated its list of jurisdictions that have material deficiencies in their anti-money laundering requirements or measures regarding the combatting of financing of terrorism. This update may affect financial services’ firms’ obligations and risk-based approaches to dealing with persons from the identified jurisdictions. FATF is a 37-member intergovernmental policy-making body that establishes international standards to address money laundering and terrorist financing. The United States is a member of FATF.

• Trader Convicted of LIBOR Manipulation Ordered to Disgorge GBP 878,806: Tom Hayes, a former derivatives trader for UBS and Citigroup convicted for his alleged role in the manipulation of the London interbank offered rate from August 2006 through September 2010, was ordered to pay GBP 878,806 (approximately US $1.24 million). This amount was the relevant UK court’s assessment of the benefit Mr. Hayes received from his purported illicit actions. Mr. Hayes is currently serving an 11-year sentence for his alleged wrongdoing; the length of his term could be extended if he does not pay the amount of his so-called “confiscation order”

• Foreign Access to China Energy Future Contract Likely Delayed Until Year-End: Platts reported that the anticipated launch of crude oil futures contract on the Shanghai International Energy Exchange accessible by foreigners, anticipated for last year, is now likely delayed until year-end 2016. Previously, the China Securities Regulatory Commission issued interim final measure and INE published proposed rules to effectuate the launching of this contract and opening of trading to foreigners.