CFTC

CFTC Publishes First Enforcement Manual

 

On May 8, the Division of Enforcement (DOE) of the Commodity Futures Trading Commission (CFTC) published its first Enforcement Manual. The Enforcement Manual establishes certain general policies and procedures to guide the work of the DOE in pursing violations of the Commodity Exchange Act (CEA) and CFTC regulations, and will serve as a general reference for DOE staff in the investigation and prosecution of potential violations of the CEA and CFTC regulations.

CFTC Approves a Final Rule Revising Privacy Notice Requirements

 

On April 19, the Commodity Futures Trading Commission (CFTC) approved a final rule to revise an existing CFTC regulation that currently requires certain merchants and dealers, among other persons, to provide annual privacy notices to customers. The new rule will remove this requirement to provide annual privacy notices when certain conditions are met. Release.

CFTC Approves Comparability Determination for Japan’s Uncleared Swap Margin Rules

 

On March 26, the CFTC approved an amended comparability determination that would extend the substituted compliance permitted for Japan’s margin requirements for uncleared swaps with respect to the scope of entities subject to the margin requirements and the treatment of inter-affiliate transactions. Release. Comparability Determination.

CFTC Issues Interim Final Rule Allowing Uncleared Swaps to Retain Legacy Status in Case of “No-Deal Brexit”

 

On March 25, the CFTC adopted and requested comments on an interim final rule designed to provide greater regulatory certainty to global derivatives markets in the event of a “no-deal Brexit.” If the United Kingdom leaves the European Union without a negotiated withdrawal agreement, affected swap dealers and major swap participants may need to effect legal transfers of uncleared swaps that were entered into before the relevant compliance dates under the CFTC Margin Rule or Prudential Margin Rule. The interim final rule would allow an uncleared swap to retain its legacy status under the CFTC Margin Rule or Prudential Margin Rule when so transferred. Release. Interim Final Rule.

US CFTC and UK FCA Sign Arrangement to Collaborate on FinTech Innovation

 

On February 19, The US Commodity Futures Trading Commission (“CFTC“) and the UK’s Financial Conduct Authority (“FCA“) signed an arrangement that commits the regulators to collaborating and supporting innovative firms through each other’s financial technology (“FinTech“) initiatives — LabCFTC and FCA Innovate. This is the first FinTech innovation arrangement for the CFTC with a non-U.S. counterpart.

The Cooperation Arrangement on Financial Technology Innovation (“FinTech Arrangement“) focuses on information-sharing regarding FinTech market trends and developments. It also facilitates referrals of FinTech companies interested in entering the others’ market, and sharing information and insight derived from each authority’s relevant sandbox, proof of concept, or innovation competitions. Release.

CFTC Files Eight Anti-Spoofing Enforcement Actions against Three Banks (Deutsche Bank, HSBC & UBS) & Six Individuals

 

On January 29, 2018, the Commodity Futures Trading Commission (“CFTC“), along with the Department of Justice and FBI’s Criminal Investigation Division, announced both criminal and civil enforcement actions against three banks and six individuals for commodities fraud. The banks involved in the action include Deutsche Bank, USB and HSBC. Release.

SEC Division of Investment Management Letter on Cryptocurrency Related Investment Products; Joint Statement by SEC and CFTC Enforcement Directors Regarding Virtual Currency Enforcement Actions

On January 18, 2018, in a letter to the Investment Company Institute and SIFMA, Dalia Blass, Director of the SEC’s Division of Investment Management, warned market participants against the risks of creating and marketing investment products to retail investors that hold “substantial amounts” in “cryptocurrencies and related products.” The risks/concerns posed by cryptocurrency ETFs and funds, including transparency of information, trading, valuation and custody, were highlighted.

Also, on January 19, 2018, SEC Co-Enforcement Directors Stephanie Avakian and Steven Peikin and CFTC Enforcement Director James McDonald issued the following Statement:

“When market participants engage in fraud under the guise of offering digital instruments – whether characterized as virtual currencies, coins, tokens, or the like – the SEC and the CFTC will look beyond form, examine the substance of the activity and prosecute violations of the federal securities and commodities laws. The Divisions of Enforcement for the SEC and CFTC will continue to address violations and bring actions to stop and prevent fraud in the offer and sale of digital instruments.” Release.

 

CFTC Approves Amendments to Rules on Intermediary Registration and Review of Adverse Actions

On January 9, 2018, the U.S. Commodity Futures Trading Commission (the “CFTC“) approved final rules that update Parts 3 and 9 to integrate existing advisory guidance, incorporate swap execution facilities (“SEFs“) and update provisions currently applicable to designated contract markets (“DCMs“). Part 3 governs registration of intermediaries and Part 9 relates to CFTC review of exchange disciplinary, access denial, or other adverse actions. Press Release. Rules.

 

Chairman Giancarlo Statement on Virtual Currencies

On January 4, 2018, the Commodity Futures Trading Commission (CFTC) Chairman, J. Christopher Giancarlo, issued a statement on virtual currencies. “The CFTC’s Market Risk Advisory Committee (MRAC), sponsored by CFTC Commissioner Rostin Behnam, has announced that it will hold a meeting on January 31, 2018 to consider the process of self-certification of new products and operational rules by Designated Contract Markets (DCMs) under the Commodity Exchange Act (CEA) and CFTC regulations . . . . The MRAC meeting is scheduled to take place the week after a January 23, 2018 meeting of the CFTC Technology Advisory Committee (TAC), sponsored by CFTC Commissioner Brian Quintenz, which will consider the related challenges, opportunities, and market developments of virtual currencies. Both the MRAC and TAC January meetings are timely and have the support of the full Commission. My fellow Commissioners and I look forward to thorough and thoughtful discussions.”

The Statement is of particular significance because on December 1, 2017, the Chicago Mercantile Exchange Inc. (CME) and the CBOE Futures Exchange (CFE) self-certified new contracts for bitcoin futures products, and the Cantor Exchange (Cantor) self-certified a new contract for bitcoin binary options. At that time, CFTC Chairman Giancarlo stated that “we have had extensive discussions with the exchanges regarding the proposed contracts, and CME, CFE and Cantor have agreed to significant enhancements to protect customers and maintain orderly markets. The Statement also emphasized that “the Commission will continue to assess whether further changes are required to the contract design and settlement processes . . . These activities include monitoring and analyzing the size and development of the market, positions and changes in positions over time, open interest, initial margin requirements, and variation margin payments, as well as stress testing positions.” Press release.