Last week was a busy and diverse week of developments in the financial services industry with no one common theme as many aspects were touched by regulators and courts worldwide. In addition, both the chairs of the Commodity Futures Trading Commission and the Securities and Exchange Commission gave some further insights into their priorities, while the European Commission formally delayed implementation of a potentially punitive capital hit for European banks exposed to US clearinghouses. As a result, the following matters are covered in this week’s Bridging the Week:
- US Judge Says Sentinel 2007 Transfers to BNY Mellon Cannot Be Reversed as Made in Good Faith;
- Appeals Court Sets Aside Insider Trading Convictions Saying Traders Distance From Corporate Insiders Too Far;
- European Banks Receive a Stay From Taking Capital Hits for Exposure to US Clearinghouses;
- SEC Chair Says Commission Will Address Portfolio Composition and Operational Risks by Investment Funds…;
- …CFTC Chairman Also Sets Forth Priorities to US Senate Committee; Says Individuals Will Be Held Accountable in Enforcement Actions;
- SEC Okay to Prosecute Cases Before Administrative Tribunals Rather Than Federal Courts Says US Judge;
- ICE Futures U.S. Proposes to Reduce Waiting Time for Execution of Crossing Orders for Certain Contracts (includes Compliance Weeds);
- Operator of Non-Registered Securities Trading Venues that Permitted Virtual Currency Payments Fined by SEC;
- Firm Fined by ICE Futures U.S. for Not Having Adequate ATS Safeguards to Avoid Self-Matching (includes Compliance Weeds);
- Retail FX Dealer Sanctioned US $600,000 by CFTC for Three Days of Net Capital Violations, Failure to Supervise and Reporting Matter;
- FXDirectDealer Fined US $500,000 by NFA for AML Violations and Failure to Supervise;
- Basel Committee Revises Securitization Framework;
- Eight Audit Firms Sanctioned by SEC for Providing Both Audit and Non-Audit Services to Audit Clients;
- FINRA Not Playing: Fines 10 Broker-Dealers US $43.5 Million for Research Analyst Violations in Connection With Toys “R” Us Initial Public Offering; and more.
US Judge Says Sentinel 2007 Transfers to BNY Mellon Cannot Be Reversed as Made in Good Faith
The Bank of New York Mellon Corporation (formerly Bank of New York) was absolved of having engaged in “egregious misconduct” in connection with its relationship with Sentinel Management Group by a United States federal court in Chicago.
Sentinel was an investment management firm registered with the Commodity Futures Trading Commission as a futures commission merchant that claimed it specialized in short-term cash management for hedge funds, individuals, financial institutions and FCMs. The firm filed for bankruptcy in August 2007 after it unlawfully commingled US $460 million of client securities into its house account, and used client collateral to obtain a US $321 million line of credit. Eric Bloom, Sentinel’s former chief executive officer, was convicted earlier this year of defrauding Sentinel’s customers and awaits sentencing.
In August 2013, a US federal appellate court in Chicago had ruled that another proceeding must take place at the lower-level court to determine whether BNY Mellon appropriately protected itself by asserting a lien on assets of Sentinel in connection with a loan it granted the firm. Alternatively, the appellate court sought a determination of whether BNY Mellon was aware that Sentinel was using protected customer assets inappropriately to secure its lien; in which case it must return US $312 million, the value of collateral it held.
In its current decision, the court held that BNY Mellon’s conduct was not sufficiently wrongful to defeat its lien against Sentinel, and that its loan against collateral was made in good faith and should not be avoided. The liquidation trustee of the Sentinel liquidation trust has repeatedly argued that BNY Mellon was obligated to return the collateral to the trust.
Although the court acknowledged evidence that BNY Mellon was aware that Sentinel “was using at least some of the loan proceeds” backed by mixed customer and house collateral “for its own purposes,” the bank believed in good faith that such practice was legitimate, said the court. According to the court, Mr. Bloom, “a Sentinel insider, told [BNY Mellon] that Sentinel had permission, generally, to use client’s segregated funds as collateral for leveraged trading.” The reliance on Mr. Bloom’s representation was reasonable, claimed the court:
Long term stable banking relationships can give rise to actions based, in some part, on trust. That BNYM did not take further steps to investigate Sentinel’s practices for misconduct and, instead, relied on Sentinel’s statements is reasonable in the specific setting of this case. Good faith reliance is an inescapable requisite of a banking finance enterprise. BNYM is neither a father’s keeper nor a partner (despite the current advertising of some banks) of those companies to whom it loans money for business operations. A bank loan is an arm’s length deal. It is both legally and economically wrong to require of a bank the kind of systemic oversight that a parent or holding company often chooses to exercise over a subsidiary. Banks can exercise oversight if they choose, but that oversight is to ensure that the bank’s interest, and not the interest of the debtor, is protected. Close surveillance of the integrity of the debtor and its conduct might be better for a bank, particularly at the outset of the relationship, but this is not an iron-clad duty a bank owes to its debtor or to the debtor’s clients.
In holding for BNY Mellon, the court noted that the National Futures Association had audited Sentinel annually up to 2006, and that McGladrey LLP and its predecessor firm had routinely issued unqualified audit opinions regarding Sentinel’s statement of financial position. Relying on these reviews and the lack of other notice, BNY Mellon was justified in thinking nothing was askew, claimed the court:
There is no evidence in the record that either the auditor or regulator—independent entities with the power of oversight over Sentinel—knew or should have known of wrongdoing before Sentinel’s collapse. BNYM management could fairly rest on the protection of the collateral for its loan at least until such time as the NFA or auditors or, in this case, an inability to honor requests for customer redemptions started the bells ringing. BNYM, I concluded, neither knew nor should have known that Sentinel was misusing loan proceeds or participating in any other misconduct.
Appeals Court Sets Aside Insider Trading Convictions Saying Traders Distance From Corporate Insiders Too Far
The convictions of two individuals—Todd Newman and Anthony Chiasson—for insider trading under United States securities law was set aside by a federal appeals court in New York last week.
The court claimed that, in its prosecution of the defendants, the US government failed to demonstrate that the initial insiders from whom defendants’ liability ultimately derived received sufficient personal benefit to establish their (let alone defendants’) securities law liability. Moreover, said the court, the US government failed to provide any evidence that the defendants knew “they were trading on information obtained from insiders in violation of those insiders’ fiduciary duties.”
Mr. Newman—a former portfolio manager at Diamondback Capital Management, LLC—and Mr. Chiasson—a former portfolio manager at Level Global Investors, L.P., were previously charged and convicted of trading in securities based on illegally obtained insider information initially provided by employees at publicly traded technology companies, subsequently shared with analysts at hedge funds and investment firms, and ultimately provided to the defendants. The alleged insider information related to earning announcements of Dell Inc. and Nvidia Corporation prior to the public release of such information in 2008.
The court wrote that three conditions must exist to find criminal liability against an alleged recipient of material non-public information (a so-called “tippee”) for illegal trading on insider information: (1) the corporate insider who was the ultimate source of the information must have had fiduciary duty not to disclose material, nonpublic information; (2) the corporate insider must have breached that duty by disclosing the information to an unauthorized person in exchange for personal benefit; and (3) the tippee alleged to have violated the law must have known or should have known of the breach.
The court concluded that the US government, in its prosecution of defendants, presented insufficient evidence that the corporate insiders received sufficient personal benefit or—even if they did –that defendants knew they were trading on information obtained from persons who had breached their fiduciary duties. Indeed, said the court, "Newman and Chiasson were several steps removed from the corporate insiders and there was no evidence that either was aware of the source of the insider information."
And briefly:
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European Banks Receive a Stay From Taking Capital Hits for Exposure to US Clearinghouses: The European Commission formally delayed the implementation of punitive capital requirements for European Union banking groups that had exposure to clearinghouses (CCPs) that were not determined to be so-called “qualifying CCPs” by the EC. Under European requirements, CCPs are considered qualifying if they are “authorized”—for those established in the EU—or “recognized”—for those established outside the EU. Only CCPs established in jurisdictions whose regulation of CCPs has been determined to be equivalent to that of the EC can be recognized by the EC; the oversight of clearinghouses by the Commodity Futures Trading Commission has not yet been determined to be equivalent by the EC. The transitional period before implementation of the new capital requirements had been scheduled to expire today (December 15); it will now expire on June 15, 2015. (Click here for more details regarding the EC process regarding CCP recognition in the article, “European Commission Recognizes Four CCP Regulatory Regimes as Equivalent—Not US” in the October 27 to 31 and November 3, 2014 edition ofBridging the Week.)
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SEC Chair Says Commission Will Address Portfolio Composition and Operational Risks by Investment Funds…: Mary Jo White, Chair of the Securities and Exchange Commission, discussed her priorities regarding the SEC’s oversight of the registered asset management industry during comments delivered before a conference sponsored by The New York Times at the newly opened One World Trade Center tower in New York City last week. These priorities include addressing regulated funds’ portfolio composition and operational risks. According to Ms. White, portfolio composition risk derives from the makeup of a fund’s investments and “the impact that mix, including the interaction of particular financial instruments, can have on a fund.” The liquidity and leverage of a fund’s holdings are part of this risk, said Ms. White. Operational risks come about from “inadequate or failed internal processes and systems,” she said. Ms. White said the SEC must enhance the “data and other information” it requires to assess these risks; ensure that registered funds augment “their fund-level controls” so they may better assess and address portfolio composition risks; and require firms have plans for dealing with their clients’ assets when there is a "major disruption to their business."
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…CFTC Chairman Also Sets Forth Priorities to US Senate Committee; Says Individuals Will Be Held Accountable in Enforcement Actions: In testimony before the United States Senate Committee on Agriculture, Nutrition and Forestry, Timothy Massad, Chairman of the Commodity Futures Trading Commission, suggested that going forward, in enforcement actions, the CFTC would “seek to hold not just firms, but also individuals, accountable.” He also noted that, in cases “involving willful violations” of relevant law, the agency works “closely” with criminal authorities, including the US Department of Justice. In his testimony, Mr. Massad also laid out his agenda for the CFTC going forward. Among his priorities are continuing to fine-tune rules to ensure they work for commercial end users; finalizing rules related to margin for uncleared swaps, swap dealer capital and position limits; working with international regulators to harmonize approaches to cross-border issues; improving data reporting; and considering what “additional measures, if any, might be necessary to address automated trading.” Mr. Massad indicated the Commission would like to do more in the area of cybersecurity for trading facilities and clearinghouses, but “our capacity to carry out examinations and address cybersecurity more broadly is significantly constrained by our current budget.” Mr. Massad did not propose any specific time frames to implement his priorities.
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SEC Okay to Prosecute Cases Before Administrative Tribunals Rather Than Federal Courts Says US Judge: A United States federal court in New York upheld the right of the Securities and Exchange Commission to bring enforcement actions before an administrative law judge, as opposed to a federal court. Previously, Wing F. Chau and his firm, Harding Advisory LLC, had been sued by the SEC related to alleged misrepresentations made in connection with collateralized debt obligations. In response, Mr. Chau and Harding filed an action in federal court to enjoin the SEC from going forward, claiming that an enforcement proceeding in an administrative tribunal deprived them “of their rights of due process and equal protection of law.” Mr. Chau and Harding were unsuccessful in stopping their administrative hearing from proceeding, and it is now completed with a decision apparently soon expected. In this action, the court dismissed Mr. Chau’s and Harding’s complaint entirely saying it lacked subject matter jurisdiction to hear the case. According to the court, the plaintiffs’ right to appeal an adverse decision first to the SEC and then to a US federal appellate court are sufficient to address plaintiffs’ constitutional law concerns. In holding against plaintiffs, the Court noted it “has not considered any views concerning the proper or wise allocation of interpretive functions between the Commission and the courts. Those are policy matters committed to the legislative and executive branches of government.”
- ICE Futures US Proposes to Reduce Waiting Time for Execution of Crossing Orders for Certain Contracts: In connection with certain of its contracts, ICE Futures U.S. proposes to reduce the time offsetting orders must be exposed to the market prior to activating a crossing order. Currently, when a crossing order is entered into the exchange’s electronic trading system, a request for quote message is automatically generated, and the order is exposed to the market for 5-15 seconds depending on the product. After the mandatory waiting period, if there is no better bid or offer, both sides of the crossing order are executed at the submitted price. The proposed rule amendment will establish a uniform five-second waiting period for all products. This will affect agricultural, precious metals and other financial options where the waiting period currently is 15 seconds. The exchange claims that adoption of this proposal will, among other things, help hedging by certain market participants. The new rule, unless objected to by the Commodity Futures Trading Commission, will be effective January 5, 2015.
Compliance Weeds: Both CME Group and ICE Futures U.S. have detailed requirements related to pre-execution communications and minimum required times orders must be exposed to the market prior to crossing. Violations of these requirements could result in enforcement actions both by the exchanges and, in theory, the Commodity Futures Trading Commission (as a violation of its prohibition against non-competitive executions unless undertaken in accordance with rules of an exchange). Click here to access a CME Group cross trade overview, and here to access a recently issued Pre-Execution Communications FAQ by ICE Futures U.S.
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Operator of Non-Registered Securities Trading Venues That Permitted Virtual Currency Payments Fined by SEC: The operator of trading venues for securities that accepted payment for transactions in Bitcoins and Litecoins—virtual currencies—settled charges brought by the Securities and Exchange Commission that the venues did not have required registration as an exchange. According to the SEC, Ethan Burnside and BTC Trading, Corp., his wholly owned company, had established LTC-Global Stock Exchange and BTC Virtual Stock Exchange, and conducted business through these entities as virtual currency-denominated securities exchanges from August 2012 through October 2013. The exchanges were established, according to the SEC, to permit “users ‘to experiment with virtual currency investing by purchasing stock in virtual currency’ and/or ‘start a virtual currency company and issue stock to raise funds’ for that company.” During the relevant time, over 10,000 users opened accounts in aggregate with both trading venues. In addition, Mr. Burnside also settled charges that he offered to buy and sell unregistered shares of two virtual currency companies he owned and operated, and that BTC and he acted as a broker-dealer without registration. In connection with these matters, Mr. Burnside and BTC agreed to a cease-and-desist order and to disgorge profits of US $55,000 and pre-judgment interest. The SEC acknowledged Mr. Burnside’s prompt remedial efforts and cooperation with its staff, noting that “[Mr.] Burnside’s efforts facilitated the staff’s investigation involving an emerging technology.” (Click here for further information on this matter in the article, “SEC Sanctions Operator of Unregistered Virtual Currency Exchanges,” in the December 12, 2014 edition of Corporate and Financial Weekly Digest by Katten Muchin Rosenman LLP.)
- Firm Fined by ICE Futures U.S. for Not Having Adequate ATS Safeguards to Avoid Self-Matching: Richfield Investments Inc. agreed to pay a fine of US $20,000 to ICE Futures U.S. in connection with “numerous” self-matched trades on December 9, 2012. According to the exchange’s disciplinary notice, the self-matched trades were caused by an “erroneous manual entry” that caused two automated-trading system strategies to trade opposite each other. Richfield was charged with failing to supervise. Unrelatedly, ICE Futures U.S. settled charges with J. Aron and Company related to a violation of the exchange’s spot month speculative position limits on one occasion in 2013. For its settlement, J. Aron agreed to pay a penalty of US $82,064 that included disgorgement of US $62,064.
Compliance Weeds: Although futures exchanges may not have per se rules requiring compliance with best practices in relation to automated trading systems, breakdowns can result in enforcement actions under different theories, such as a failure to properly use an exchange’s trading platform (i.e., CME Rule 432W), committing an act which is detrimental to the interest of an exchange (i.e., CME Rule 432Q) or failure to supervise, as in the Richfield Investments matter. Trading firms should also consider employing exchanges’ self trade prevention functionality whether mandated under certain circumstances (such as on ICE Futures U.S.; for more click here) or not (click here for details on CME Group’s capability).
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Retail FX Dealer Sanctioned US $600,000 by CFTC for Three Days of Net Capital Violations, Failure to Supervise and Reporting Matter: IBFX, Inc.—a registered retail foreign exchange dealer—settled charges brought by the Commodity Futures Trading Commission that, on three occasions from December 2011 through June 2014, it violated the Commission’s net capital requirement. According to the CFTC, on the first occasion, the firm’s error arose from not taking into account certain uncovered FX positions for which it was required to take a capital charge (but did not). On the second occasion, IBFX’s mistake was because of a typographical error, and on the third occasion, its failure occurred “when software that IBFX installed, but did not fully test prior to installation, resulted in uncovered positions requiring charges to capital” it did not take. The CFTC also charged IBFX with failing to report timely its undercapitalized status on one occasion and failure to supervise. To resolve this matter, IBFX agreed to pay a fine of US $600,000.
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FXDirectDealer Fined US $500,000 by NFA for AML Violations and Failure to Supervise: FXDirectDealer LLC and Joseph Botkier, its chief executive officer, agreed to settle an administrative complaint brought by the National Futures Association in September 2014 by FXDD paying a fine of US $500,000. The complaint had alleged that FXDD—a futures commission merchant, a forex dealer member, and a provisional registered swaps dealer—failed to maintain an adequate anti-money laundering program; did not offset transactions in certain customer accounts in a “fair and acceptable manner;” did not file 2012 and 2013 financial statements in a timely manner; and used misleading promotional material to solicit customers. Both FXDD and Mr. Botkier were charged with failing to supervise. As part of the settlement, NFA found that FXDD failed to maintain an adequate AML program; did not file financial statements on a timely basis and failed to supervise. There were no other findings regarding FXDD or Mr. Botkier. In connection with the settlement, FXDD also agreed to withdraw as a provisionally registered swaps dealer and operate solely as an introducing broker; its FCM and FDM registrations already are pending withdrawal. In September 2013 both the Commodity Futures Trading Commission and NFA settled charges against FDXX related to the manner in which it confirmed prices to transactions to customers by payment of aggregate sanctions of almost US $4 million. NFA also settled charges related to FDXX’s failure to maintain an adequate AML program. In July 2013, James Green, the former chief compliance officer and chief anti-money laundering officer of FDXX agreed to pay a fine of US $75,000 and not serve as a CCO or CAML for one year related to FDXX’s alleged AML failures.
- Basel Committee Revises Securitization Framework: The Basel Committee on Banking Supervision of the Bank for International Settlements revised its securitization framework for banks to reduce reliance on external ratings, and to better correlate risk weights to the quality of securitization exposure. (In general, the securitization framework establishes how much regulatory capital banks must apply against their securitized exposures.) This revision occurred a week after the Basel Committee found the United States “largely compliant” in its roll-out of the Basel capital framework for banks, but non-compliant in two specific categories, including its adoption of the securitization framework. The revisions are effective January 2018.
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Eight Audit Firms Sanctioned by SEC for Providing Both Audit and Non-Audit Services to Audit Clients: The Securities and Exchange Commission fined eight accounting firms US $140,000 in aggregate for using information from financial documents obtained from broker-dealer clients during audits to prepare their clients’ financial statements and notes. According to the SEC, this conduct violated SEC auditor independence rules by enabling the accounting firms to audit their own work. As a result, the accounting firms were not “independent” of their audit clients as required under applicable SEC rules. In addition to payment of fines, each accounting firm was required to establish written policies to provide “reasonable assurance” of compliance with their independence requirements.
- FINRA Not Playing: Fines 10 Broker-Dealers US $43.5 Million for Research Analyst Violations in Connection With Toys “R” Us Initial Public Offering: The Financial Industry Regulatory Authority fined 10 broker dealers an aggregate of US $43.5 million for employing equity research analysts as part of their efforts in 2010 to be part of an initial public offering for Toys “R” Us—contrary to regulatory requirements. Each of the firms, alleged FINRA, expressly or implicitly promised favorable research coverage if they were selected to participate in the IPO. Some of the firms were also charged by FINRA for failing to have adequate supervisory procedures related to research analyst participation in IPO mandate solicitations.
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‘Tis the Season to Give and Receive—But Not Too Much Says the CME Group…: The CME Group issued a reminder that its rules prohibit members, member firms, broker associations and their employees from giving gifts or gratuities in excess of US $100/year to employees of other members, member firms or broker associations. According to CME Group, its rule is “substantially similar” to an equivalent prohibition by the Financial Industry Regulatory Authority.
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…While FINRA Considers Raising $100 Current Gift Limit: As a result of a retrospective review, the Financial Industry Regulatory Authority announced it will be exploring a “combination of guidance and proposed rule modifications” related to its gifts and non-compensation rules. Among other things, FINRA will consider increasing the current $100/year limit on gifts and establishing a de minimisthreshold below which firms would not be required to track gifts whether given or received.
- First ICE, Then Eurex Announce Swap Futures Contracts: Two weeks ago, the Intercontinental Exchange announced its licensing agreement with Eris Exchange to list credit default swaps futures and European interest rate futures based on the Eris Methodology™. Last week, Eurex and the Global Markets Exchange Group Limited announced their plan for Eurex to license GMEX’s Euro-denominated constant maturity futures contract—based on an interest rate swap index average—for trading through Eurex’s multilateral trade registration service and clearing through Eurex Clearing.
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