In January 2010, the CFTC proposed rules regarding regulation of retail off-exchange foreign currency (forex) products. It received over 9,000 comments relating to the forex rules and will start publishing final rules this fall. One component of the proposed rules requires all forex account managers and pool operators to register with the CFTC as forex CTAs and CPOs and to become NFA Members. For those forex managers with criminal disclosures, a concern is how long it will take to get through the registration process and what registration will entail.
This article describes the registration process for forex managers with disciplinary disclosures and the issues they will likely face.
Anticipated Forex Registration Process
The forex registration procedures are likely going to be the same as those currently in place for regular CPOs and CTAs. CPOs and CTAs must file the following:
- a completed online Form 7-R (including NFA membership sections)
- a non-refundable application fee
- CPO/CTA Membership Dues
Principals and Associated Persons of a CPO or CTA must also file the following:
- a completed online Form 8-R
- Fingerprint Cards
- Proficiency Requirements (e.g. Series 3)
- a non-refundable Principal Application Fee
- a non-refundable Associated Person Application Fee
Disciplinary Disclosures on Forms 7-R and 8-R
On Forms 7-R and 8-R, the manager must provide disciplinary information for the firm, the Principals, and the Associated Persons. This includes criminal disclosures, regulatory disclosures, and financial disclosures. The NFA has indicated that if any of the disciplinary information disclosed is a disqualification from registration under Sections 8a(2) or 8a(3) of the Commodity Exchange Act, the application will probably be reviewed by an internal NFA committee.
Disqualifications under Sections 8a(2) and (3) include, for example:
- suspension or revocation of prior NFA registration
- a permanent or temporary injunction from (i) acting as an FCM, IB, floor broker, floor trader, CTA, CPO, associated person, securities broker, etc.; or (ii) activity involving embezzlement, theft, extortion, fraud, misappropriation of funds, etc.
- a conviction within 10 years for a felony that (i) involves transactions or advice concerning futures contracts; (ii) arises out of the conduct of the business of an FCM, IB, floor broker, CTA, CPO, etc.; or (iii) involves embezzlement, theft, extortion, fraud, misappropriation of funds, securities or property, forgery, etc.
- a finding, by a federal or state regulatory body, that the manager has violated various securities and commodities laws
It is important to disclose all disciplinary matters. Failure to disclose such matters could be an additional ground for disqualification from registration. It is also important that if the forex manager answers “Yes” to any of the disciplinary information questions, he or she provides a written explanation detailing the events and conduct involved. In addition to this explanation, other documents may also be required by the NFA (e.g. court records). Failure to provide the additional documentation will inevitably delay the registration process.
Providing Additional Documents for Criminal Matters
If a criminal matter is disclosed, the NFA will want documents that reflect the following information:
- the complaint;
- the entry of a plea or plea agreement, or judgement/conviction;
- the sentence;
- proof that you completely satisfied your sentence; and
- the final outcome of the court’s action .
It is probably best to request your entire court file so that the documents are available for the NFA.
Review by an Internal NFA Committee or Scheduling a Hearing
Upon receiving the application materials listed above (and any required supplemental documents (e.g. court records)), the reviewer will forward the case on to the internal NFA committee. We spoke informally to an NFA reviewer who stated that the committee hears cases once a week, on a first-in, first-out basis. That committee will review the circumstances of each disqualification independently and decide whether to approve registration or to recommend a proceeding to deny registration. The NFA reviewer we spoke to said that a decision by this committee is generally made within 24 hours. Upon approval, the firm will appear on the NFA’s BASIC search engine. If the application is denied, a denial letter is sent to the manager. A hearing can then be scheduled with the legal department and additional information regarding the registration may be provided.
At the end of the hearing, the registration is essentially either denied, approved, or approved with conditions. It is difficult to predict the amount of time it would take for a forex manager with a criminal record to get through the NFA registration process. If supplemental documents (e.g. court records) are missing, the reviewer will have to send deficiency letters to the manager, which will delay the registration process.
Other related hedge fund law articles:
Cole-Frieman & Mallon LLP provides legal support and forex registration services to forex managers. Bart Mallon, Esq. can be reached directly at 415-868-5345.