Last week, conduct of the nature of spoofing was the focus of a surprising criminal indictment in Chicago, Illinois and the settlement of a complaint brought by the Commodity Futures Trading Commission charging attempted manipulation. The CFTC was also involved in a host of other litigation developments, including a court's ruling in an enforcement action against the New York Mercantile Exchange for the alleged disclosure of nonpublic customer and trade data by two ex-employees.

NJ-Based Trader Previously Sanctioned by UK FCA, CFTC and CME Indicted in Chicago for Same Spoofing Offenses

New Jersey resident Michael Coscia, the prior manager and sole owner of Panther Energy Trading LLC, was indicted in Chicago last week for alleged spoofing activities involving futures traded on CME Group and ICE Futures Europe from August through October 2011.

The Commodity Futures Trading Commission, the UK Financial Conduct Authority and the Chicago Mercantile Exchange previously brought enforcement proceedings in July 2013 and entered into simultaneous settlements with Mr. Coscia and Panther related to this same conduct, assessing aggregate sanctions in excess of approximately US $3 million and various trading prohibitions. The CME also required disgorgement of US $1.3 million of trading profits. (Click here to access more information on these civil enforcement actions in the article “CFTC, UK FCA and CME File Charges and Settle With Proprietary Trading Company and Principal for Spoofing” in the July 22, 2013 edition of what is now known as Between Bridges.)

According to the indictment, during the relevant time, Mr. Coscia utilized two computer-driven algorithmic trading programs that repeatedly placed small buy or sell orders in a market, followed by the rapid placement and retraction of large orders—so called “quote orders”—on the opposite side of his small orders. He supposedly did this in order to deceive the market and help ensure the execution of his small orders at favorable prices.

After the initial small orders were executed, Mr. Coscia would reverse the process—placing new small orders on the opposite side of the market as his initial filled orders and large quote orders on the opposite side of the new small orders. He allegedly traded this way in order to ensure the fills of the new small orders and profits on the overall transaction.

The indictment claimed that, as part of his “scheme,” Mr. Coscia,

[d]esigned his programs to cancel the quote orders within a fraction of a second automatically, without regard to market conditions, even if the market moved in a direction favorable to the quote orders. Coscia programmed the quote orders to cancel quickly and automatically because he did not intend for the quote orders to be filled when he entered them, but instead intended to trick other traders into reacting to the false price and volume information he created with his fraudulent and misleading quote orders.

The indictment alleges that, in connection with his unlawful activity, Mr. Coscia traded overall 17 different CME markets and three different ICE Futures Europe markets, including gold, foreign exchange and soybean oil futures contracts. Mr. Coscia made over US $1.5 million as a result of his trading activity, claims the indictment.

Mr. Coscia’s indictment alleges six counts of commodities fraud and six counts of spoofing that relate solely, however, to six discrete trading episodes which, in total, allegedly netted Mr. Coscia US $1,070 in profits.

Spoofing was expressly prohibited in 2010 by amendments to relevant law enacted as part of the Dodd-Frank reforms. This is the first case brought by the US Attorney’s Office in Chicago under this new law.

The CME Group also recently enacted a new rule expressly prohibiting certain disruptive trading practices. (Click here to see an overview of these new rules in “CME Group Issues New Rule Regarding Disruptive Trading Practices” in the September 4, 2014 edition of Between Bridges.)

Mr. Coscia faces substantial prison time and fines if convicted—25 years for each count of commodities fraud and 10 years for each count of spoofing.

The US Attorney’s Office in Chicago established a Securities and Commodities Fraud Section earlier this year “dedicated to protecting markets and preserving investors’ confidence.”

My View:  Whatever the merits of this action, a major policy concern is the chilling effect the knowledge of impending or likely criminal charges will have on persons eager to settle their exchange or government-driven civil enforcement matters and move on. Here, Mr. Coscia not only paid a substantial penalty for his actions, he disgorged most of his profits and agreed to trading prohibitions—thus substantially impacting his future livelihood. If the purposes of criminal sanctions are to act as a deterrent, punish individuals and encourage the rehabilitation of wrongdoers, it is not clear what the incremental benefit of imposing additional penalties in this criminal action may be. Moreover, it is also not clear how this effectively redundant legal proceeding (albeit a criminal action with the prospect of incarceration) related to just a very small portion of Mr. Coscia’s alleged overall wrongful conduct (US $1,070 of US $1.5 million of total profits) justifies the expenditure of limited tax dollars—other than to generate dramatic headlines. These musings are not to condone illicit conduct—which should be appropriately punished—but solely to ask: when is enough enough?

And briefly:

• CFTC Obtains Consent Order Imposing US $1.56 Million Penalty on Eric Moncada for Attempting to Manipulate Wheat Futures: The Commodity Futures Trading Commission obtained a consent order against Eric Moncada in connection with its allegation that Mr. Moncada attempted to manipulate the December 2009 wheat futures contract traded on the Chicago Board of Trade on eight days during October 2009. According to the CFTC, on these days, Mr. Moncada manually placed and immediately cancelled numerous orders for 200 lots or more of the relevant futures contract or placed large-lot orders near the best bid or offer in a manner to avoid execution. The CFTC claimed that Mr. Moncada also placed small-lot orders on the opposite side of the market “with the intent of taking advantage of any price movement that might result from the misleading impression of increasing liquidity that his large lot orders created.” According to the Commission, Mr. Moncada cancelled 98 percent of the total volume of his large-lot orders typically within 2.06 seconds of entry, but sometimes as quickly as 0.226 seconds. To resolve this matter, Mr. Moncada agreed to pay a fine of US $1.56 million, refrain from trading any CFTC-regulated wheat futures or options for five years, and refrain from trading any product on a designated contract market or swap execution facility for one year, among other sanctions. This case was brought on facts that occurred prior to the adoption of the Dodd-Frank Act’s market disruption prohibitions and, had the facts been more current, likely now would have been prosecuted as a spoofing offense. (Click here for information on prior developments in this case in the article “Judge Rules Against Futures Broker Regarding Wash Sales in Wheat Manipulation Action” in the July 14 to 18 and 21, 2014 edition of Bridging the Week.)

Compliance Weeds: This case provides a good example that the prosecution of market disruption cases is nothing new for the CFTC or exchanges. This case also demonstrates that it is a misnomer to believe that market disruption may only be caused by so-called high-frequency traders. Here, the alleged spoofing-type transactions were placed manually, not by a machine. All Dodd-Frank’s new prohibited trading practices and the new CME Group rules proscribing certain disruptive trading practices have done is to provide the CFTC and the CME with new tools to prosecute conduct that formerly was seen by the CFTC as a form of manipulation or attempted manipulation, and by the CME as a violation of just and equitable principles of trade or similar catch-all provisions. (Click here to see a discussion of some recent cases brought by the CME based on old facts, which if brought today likely would have been brought under its disruptive trading practices prohibition in the article “Important Reminders Resonate From Recent CME Group and ICE Futures U.S. Disciplinary Actions in the September 22 to 26 and 29 edition of Bridging the Week.)

• Bank of America Agrees to US $7.65 Million SEC Fine to Settle Charges for Misstatement of Regulatory Capital: The Securities and Exchange Commission brought an administrative action against Bank of America Corporation for misstating the amount of its regulatory capital and ratios in numerous financial reports filed with it from 2009 to 2013. (BofA was required to file such reports with the SEC as a public company.) This error apparently arose in connection with BofA’s acquisition of Merrill Lynch & Co., Inc. at the beginning of 2009. As part of this transaction, BofA acquired a US $52.5 billion portfolio of various Merrill-issued financial instruments. Although BofA recorded the value of these instruments at less than face value—owing to, at the time, the decline in Merrill’s creditworthiness—BofA had to redeem these instruments at face value as they matured or when BofA otherwise acquired them. However, during the relevant time, BofA failed to reflect as realized losses—and thus reductions in its regulatory capital—the negative differences between the discounted value of these Merrill securities and the amount it had to pay to redeem them. As a result, the firm overstated its regulatory capital and ratios on internal records and in filings with the SEC. According to the SEC, BofA self-detected its mistake during April 2014, issued a press release revising its regulatory capital amounts and ratios, and filed an amendment with the SEC correcting its most recently filed financial report. BofA agreed to pay a fine of US $7.65 million to resolve this matter. The SEC charged BofA with violating its requirement that public companies “make and keep books, records, and accounts which, in reasonable detail, accurately and fairly reflect the transactions and dispositions of the assets of the issuer” and to maintain adequate internal accounting controls.

• DC Court Dismisses Challenge to SEC Restrictions on Asset Managers’ Political Contributions: A federal district court in the District of Columbia rejected challenges by the New York State and Tennessee Republican parties to a regulation of the Securities and Exchange Commission that prohibits registered investment advisors from providing advisory services for compensation to a government entity within two years after making a contribution to certain officials of that entity. This prohibition against so-called “pay to play” arrangements was enacted in 2010. The basis for the court’s rejection of plaintiff’s suit, however, was technical. The court wrote that it lacked subject matter jurisdiction over the plaintiff’s action, claiming that the challenge, under applicable law, should have been brought in the appellate court for the District of Columbia (namely, the Court of Appeals), not the district court.

• Trader Sued by CFTC for Violating Voluntary Agreement Not to Trade Futures Contracts During Closing Periods: The Commodity Futures Trading Commission sued Daniel Shak in a federal court in the District of Columbia, claiming he violated an agreement entered just a few months earlier that he would not trade any exchange-traded derivatives contracts under CFTC oversight during the closing period for two years. Mr. Shak signed this agreement to settle a CFTC enforcement action which had alleged that, on two days in 2008, he attempted to manipulate the price of crude oil futures traded on the New York Mercantile Exchange, and violated speculative position limits. Part of the wrongdoing, said the CFTC, involved Mr. Shak trading during the closing period. The CFTC alleged that Mr. Shak violated his agreement when, on May 22, 2014—less than six months after signing it—he traded gold futures during the closing period. The CFTC seeks an order forever barring Mr. Shak from trading exchange-traded derivatives at any time, among other relief.

Totally Irrelevant (But Is It?): One of the best lead sentences in any news story I have seen in a long time was Silla Brush’s opening line in his article regarding this matter that appeared on Bloomberg.com on September 30: “If a U.S. regulator has its way, Daniel Shak will soon have more time to focus on gambling at poker tables and none at all to spend betting on derivatives.” Mr. Brush previously had discovered that Mr. Shak was a competitor in the World Series of Poker where he has earned more than US $700,000. (Click here to see Mr. Brush’s full article.)

• Court Rejects NYMEX Claim It Can’t Be Liable to CFTC for Improper Disclosure of Nonpublic Information by Ex-Employees: A New York City-based federal court rejected a challenge by the New York Mercantile Exchange that the Commodity Futures Trading Commission could not sue NYMEX for violations by two ex-employees of a statutory prohibition against disclosing nonpublic information “inconsistent with the performance of such person’s official duties as an employee or member” of a registered entity such as NYMEX. (NYMEX is a designated contract market under law.) The CFTC had sued William Byrnes and Christopher Curtin, two former NYMEX employees, in 2013 for improperly disclosing nonpublic trade and customer data they learned through their jobs to a third party, Ron Eibschutz, in return for meals, drinks and entertainment at multiple times. The CFTC also named NYMEX in the suit, claiming it was liable for all violations of Messrs. Byrnes and Curtin as their employer under a legal theory known as “respondeat superior.” NYMEX had argued that it could not be liable for Messrs. Byrnes and Curtin’s actions because the relevant law only permits attribution of employee actions to NYMEX, not liability. In any case, argued NYMEX, it can only be disciplined for potentially violating “core principles” to which it is subject under law as a DCM. The court rejected both arguments. The court also held that the CFTC had alleged sufficient facts to defeat NYMEX’s effort to dismiss the Commission’s lawsuit against the exchange.

• CFTC Sanctions Trader for Pre-Arranged Trading That Resulted in Profits to Mom: Fan Zhang agreed to pay a fine of US $250,000 to resolve a Commodity Futures Trading Commission administrative proceeding that claimed he intentionally engaged in matching buy and sell orders on four days in 2012 and 2013. The Commission alleged that these transactions were wash sales in violation of applicable law and fictitious sales, contrary to CFTC rule. Mr. Zhang allegedly entered into these transactions to transfer over US $200,000 from an account in the name of an investment club he created, and in which he was a partner, to an account in the name of his mother. According to the CFTC, Mr. Zhang’s mother was not aware of the money transfers. Mr. Zhang previously was sanctioned by the CME Group in connection with some of the transactions at issue in the CFTC action. In the CME matter, Mr. Zhang agreed to a fine of US $7,500 and a 25-day trading prohibition.

• CFTC Seeks to Bar Admitted Embezzler and His Company From Registration After He Allegedly Fails to Disclose Crimes on His Registration Application: The Commodity Futures Trading Commission commenced an action to permanently disqualify Zero Chaos Advisors, LLC and Ronald Fisher from registration with the CFTC in any capacity. This action followed Mr. Fisher’s alleged filing on two occasions—most recently during March 2014—of applications for registration as an associated person of Zero Chaos, which Mr. Fisher founded, and is the sole shareholder and president. Zero Chaos had twice filed applications to register as a commodity trading advisor. However, according to the CFTC, on his registration applications, Mr. Fisher failed to disclose, as required, that he had pleaded guilty to two counts of bank embezzlement in 1998 related to his theft of over $1.125 million from Citibank N.A. in 1997 while an employee there, and was subsequently sentenced to 63 months in prison.

• MFA Offers Recommendations to Improve Equity Market Structure, Including Increasing Disclosure and Transparency: The Managed Futures Association issued a number of equity market structure policy recommendations last week. Among other things, MFA recommended that the Financial Industry Regulatory Authority provide more specific guidance on pre-trade risk controls to enhance transparency and mitigate concerns with respect to discrepancies in latency. MFA also urged the Securities and Exchange Commission to direct exchanges to develop a standardized mandatory kill switch protocol. Although MFA supported steps taken to date to enhance market transparency by FINRA and certain alternative trading systems (so-called “dark pools”), it urged FINRA to expand its ATS “transparency initiative” by including weekly volume and trade information on a stock-by-stock basis for equities traded over-the-counter by each FINRA member. MFA also recommended that the SEC require each ATS to make available on its website how it operates and how orders interact on the ATS, and each broker-dealer to disclose in greater detail its order routing and execution practices.

And even more briefly:

• ICE Futures U.S. Proposes to Extend Time of Precious Metals and Currency Block Trades: ICE Futures U.S. has proposed to extend the time required to report precious metals futures and options and currency futures block trades from five to 15 minutes. This new time frame will be effective October 20 absent objection from the Commodity Futures Trading Commission. On October 1, ICE Futures reduced the minimum quantity for precious metals futures and options and currency pair futures to five lots. (Click here for ICE Futures' notice regarding its reduced block trade thresholds.)

• NFA Issues Reminder Regarding Timely Filing of CPO and CTA Forms and Amends Form PQR: The National Futures Association issued a reminder that all NFA-member commodity pool operators and commodity trading advisers are required to file with it forms PQR and PR, respectively, timely, on a quarterly basis. Form PQRs are required within 60 days of quarters ending March, June and September, and within 90 days for December. Every CPO is also required to file a copy of the annual report it prepares for each fund it operates within 90 days of end of each pool’s fiscal year. Form PRs are due within 45 days of each quarter end. In connection with form PQR, NFA announced it has made minor amendments. The new amended form is required for filings related to the quarter ending September 30.

• ESMA Begins Consultation on Standards for FX Nondeliverable Forwards Clearing and Proposes Start Dates for Interest Rate Swaps Clearing: The European Securities and Markets Authority has published a consultation on draft regulatory standards related to the clearing of foreign exchange nondeliverable forwards. Comments are due by November 6. ESMA also published its draft technical standards on clearing obligations related to interest rate OTC derivatives. The issuance and delivery of these standards to the European Commission is one of the final steps before the beginning of mandatory clearing of four classes of interest rate swaps in Europe: fixed to floating swaps (plain vanilla IRS), float to float swaps (basis swaps), forward rate agreements and overnight index swaps. The EC now has three months to consider these standards. If there are no objections from the European Parliament or the Council of the European Union, the standards become effective 20 days afterward. Mandatory clearing will begin six month later for clearing member firms and later on for other types of market participants.

• CFTC Extends Duration of Previously Granted No-Action Relief Regarding Package Transactions and Certain CDS Clearing-Related Swaps: The Commodity Futures Trading Commission extended until February 16, 2015, the expiration of previously granted no-action relief related to certain straight-through processing requirements for so-called “package transactions” for swap execution facilities and designated contract markets (a package transaction is a multi-legged interrelated transaction with at least one leg being a swap subject to mandatory trading on a SEF or DCM). The CFTC likewise extended to September 30, 2015, the expiration of a prior no-action letter temporarily excusing DCOs from having to register as SEFs because a clearing member may occasionally enter into a credit default swap through the DCO’s settlement price process, as well as temporarily exempting clearing members from certain related potential obligations. (Click here to see the article “CFTC Extends Relief for SEFs and DCMs from Straight-Through Processing Requirements for Package Transactions” and here to see the article “CFTC Extends Relief to DCOs and Their Clearing Members From Requirements for CDS Clearing-Related Swaps” in Katten Muchin Rosenman’s Corporate and Financial Weekly Digest edition of October 3, 2014.)

• ESMA Updates AIFMD Q&As Regarding Reporting Obligations and Delegation of Portfolio and/or Risk Management: The European Securities and Markets Authority revised its Questions and Answers related to the Alternative Investment Fund Managers Directive. New queries and answers relate to reporting obligations of fund managers and certain consequences from the delegation of portfolio and risk management by fund managers.

• US Options Clearing Houses and Exchanges Announce New Risk Control Standards: The Options Clearing Corporation and the US options exchanges announced last week four risk control standards to enhance market protections, including price reasonability checks and kill switches. These standards will be implemented after regulatory approval. Beginning June 30, 2016, The Clearing Corporation will impose an additional US $.02/contract charge on executed transactions that do not comply with the new risk control standards.

• OCC Publishes Guidance Regarding Examinations of US-Based Agencies and Branches of Foreign Banking Organizations: The Office of the Comptroller of the Currency has revised its 1999 “Federal Branches and Agencies Supervision” booklet. This publication provides guidance to OCC-regulated federal branches and agencies of foreign banking organizations regarding how the agency will assess their overall safety and soundness during periodic examinations.

Compliance Weeds: I have always found examinations guidance by any regulator helpful to better anticipate what might be asked by my own company’s regulator—even if not precisely relevant. This is especially the case for areas where there are not necessarily specific requirements (for example, information technology). However, even where there are specific rules, seeing what another regulator identifies as the priority concerns (for example, anti-money laundering) is useful.