Monthly Archives: August 2010

Commissioner Chilton Speaks on Retail Forex Regulations

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The CFTC just released a statement by Commissioner Chilton regarding the new retail Forex regulations.  The full statement is reprinted below and can also be found here.

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“Rules to Rein in a Racket”

Statement by Commissioner Bart Chilton on the Release of New Retail Forex Rules

In recent years, mini-Madoff ponzi scams have proliferated, targeting unsuspecting investors with good hearts and limited incomes. Many of these fraudulent schemes have involved “forex” trading, that is, derivatives trading foreign currency. Operating in the shadows of the legitimate forex market, regulators have focused on the types of illegal trading in this area that targets unsuspecting consumers, and bilks them out of millions of dollars annually. New rules will rein in this racket.

Toward that end, the CFTC has worked to craft rules that will protect American investors, and at the same time provide for the operation of legitimate business activity. With these new rules, the agency is ensuring that people investing in forex are protected from fraud and abuse. These rules put the sidelines on the field so that traders know the boundaries and investors can be more assured that their money is not being traded out of bounds.

Last Updated: August 31, 2010

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Cole-Frieman & Mallon LLP is a forex law firm and provides legal support and forex registration services to forex managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

CFTC Releases Final Retail Forex Rules

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New Regulations Effective as of October 18, 2010

The final retail Forex regulations (which requires registration for forex CTAs, CPOs and IBs) have been published in the Federal Register.  The final regulations will be effective as of October 18, 2010.  The regulations were adopted essentially as written with the execption of two major issues:

  • Leverage – while the proposed rules called for a maximum leverage of 10:1, the final rules allow the NFA to determine the margin requirements for the currencies within a defined set of CFTC parmeters.  Currently the parameters include 50:1 leverage for major currencies and 20:1 leverage for all other currencies.
  • Forex Introducing Brokers – the proposed rules called for all forex introducing brokers to be guaranteed by a single FCM or RFED.  The final rules allow a forex introducing broker to be either guaranteed or independent, consistent with other regulated futures IBs.

We have not yet had a chance to talk with the NFA or the CFTC about the new rules, but we recommend that all groups who may have to register with the NFA to begin the forex registration process as soon as possible (which includes taking the Series 34 exam) because of the large amount of applications the NFA will receive because of the final regulations.

The full CFTC press release is reprinted below.

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August 30, 2010

CFTC Releases Final Rules Regarding Retail Forex Transactions

Washington, D.C. – The U.S. Commodity Futures Trading Commission (CFTC) today announced the publication in the Federal Register of final regulations concerning off-exchange retail foreign currency transactions. The rules implement provisions of the Dodd-Frank Wall Street Reform and Consumer Protection Act and the Food, Conservation, and Energy Act of 2008, which, together, provide the CFTC with broad authority to register and regulate entities wishing to serve as counterparties to, or to intermediate, retail foreign exchange (forex) transactions.

“These rules of the road will help protect the American public in the largest area of retail fraud that the CFTC oversees: retail foreign exchange,” CFTC Chairman Gary Gensler said. “All CFTC registrants involved in soliciting and selling retail forex contracts to consumers will now have to comply with rules to protect the investing public. This is also the first final rule that the Commission has published to implement the Dodd-Frank Wall Street Reform and Consumer Protection Act. We look forward to publishing additional rules to protect the American public.”

The final forex rules put in place requirements for, among other things, registration, disclosure, recordkeeping, financial reporting, minimum capital and other business conduct and operational standards. Specifically, the regulations require the registration of counterparties offering retail foreign currency contracts as either futures commission merchants (FCMs) or retail foreign exchange dealers (RFEDs), a new category of registrant. Persons who solicit orders, exercise discretionary trading authority or operate pools with respect to retail forex also will be required to register, either as introducing brokers, commodity trading advisors, commodity pool operators (as appropriate) or as associated persons of such entities. “Otherwise regulated” entities, such as United States financial institutions and SEC-registered brokers or dealers, remain able to serve as counterparties in such transactions under the oversight of their primary regulators.

The final rules include financial requirements designed to ensure the financial integrity of firms engaging in retail forex transactions and robust customer protections. For example, FCMs and RFEDs are required to maintain net capital of $20 million plus 5 percent of the amount, if any, by which liabilities to retail forex customers exceed $10 million. Leverage in retail forex customer accounts will be subject to a security deposit requirement to be set by the National Futures Association within limits provided by the Commission. All retail forex counterparties and intermediaries will be required to distribute forex-specific risk disclosure statements to customers and comply with comprehensive recordkeeping and reporting requirements.

The final rules become effective October 18, 2010.

Last Updated: August 30, 2010

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Cole-Frieman & Mallon LLP is a forex law firm and provides legal support and forex registration services to forex managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Business Continuity Plans (Disaster Recovery Plans) | Investment Adviser Registration

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The following post is part of our hedge fund compliance guide for managers who will be required to register as investment advisers with the SEC.  After the Dodd-Frank bill, managers with either $1ooM of AUM (if managing a fund and separate accounts) or $150M of AUM (if managing a fund only) will be required to register and also to implement a compliance program.  Under SEC Rule 206(4)-7 those managers will need to generally institute compliance policies and procedures (subject to annual review) and appoint a chief compliance officer.  Part of that process will be to institute a business continuity or disaster recovery plan.

Rule 206(4)-7

The full rule provides:

Rule 206(4)-7 — Compliance Procedures and Practices

If you are an investment adviser registered or required to be registered under section 203 of the Investment Advisers Act of 1940 it shall be unlawful within the meaning of section 206 of the Act for you to provide investment advice to clients unless you:

a.  Policies and procedures. Adopt and implement written policies and procedures reasonably designed to prevent violation, by you and your supervised persons, of the Act and the rules that the Commission has adopted under the Act;

b.  Annual review. Review, no less frequently than annually, the adequacy of the policies and procedures established pursuant to this section and the effectiveness of their implementation; and

c.  Chief compliance officer. Designate an individual (who is a supervised person) responsible for administering the policies and procedures that you adopt under paragraph (a) of this section

Background on BCP Requirement

While the rule does not specifically mention a “business continuity plan,” the SEC has stated that an adviser has a fiduciary obligation to protect client assets from risks resulting from the adviser being unable to provide advisory services. Thus, an adviser must create and maintain a business continuity plan which is “reasonably designed” to enable the adviser to meet client obligations in the event of a natural disaster, emergency, or significant business disruption.

In the accompanying Adopting Release Report to Rule 206(4)-7,  the SEC specifically noted that, at a minimum, policies and procedures established must address, among a number of other issues, the investment adviser’s or the fund’s business continuity plan.  [HFLB Note: Other issues the adviser’s policies and procedures should address include: (1) portfolio management, (2) trading practices, (3) proprietary trading and personal trading activities, (4) the accuracy of disclosures, (5) safeguarding client assets, (6) the accurate creation and maintenance of required records, (7) marketing advisory services, (8) process to value client holdings and assess fees based on valuations, and (9) safeguards for the privacy protections.]

The SEC did not, however, detail specific requirements for a business continuity plan, other than to state that it must adequately address the procedures necessary for the investment adviser or the fund to fulfill its fiduciary obligation to protect its clients’/investors’ interests from being placed at risk as a result of the investment adviser’s or the fund’s inability to provide investment advisory or related services after a disaster or disruption occurs.

Because the SEC did not provide direct guidance in this respect, we can, among other resources, look toward FINRA rules on this topic.

FINRA Rule 4370 (Business Continuity Plans and Emergency Contact Information)

On April 7, 2004, the SEC approved NASD Rules 3510  and 3520  requiring member firms to establish and maintain business continuity plans that meet specified requirements.  FINRA Rule 4370 superseded these rules following the consolidation of NASD and other member regulation, enforcement and arbitration functions of the NYSE regulation into FINRA.   FINRA Rule 4730 is nearly identical to the previous NASD rules.  The following sets forth the rule.

  • Establishing and Maintaining a BCP.  Requires firms to create and maintain a business continuity plan that identifies procedures related to an emergency or other significant business disruption and is “reasonably designed to enable the member [firm] to meet its existing obligations to customers.”  The business continuity plan procedures must address existing relationships with other broker-dealers and counter-parties.  The business continuity plan must be made available upon request by FINRA staff.
  • Updating Requirements.  The firm must update the business continuity plans in the event of any material change to the adviser’s operations, business, structure, or location.  In addition, the business continuity plans must be reviewed at least annually.
  • BCP Details.  The rules do not provide specific detailed requirements.  Instead, they provide a framework for minimum compliance.   The following is a non-exhaustive list of 10 key areas that the business continuity plans should address to the extent applicable and necessary.

1. Data back-up and recovery (hard copy and electronic);
2. All mission critical systems;
3. Financial and operational assessments;
4. Alternate communications between the member and its customers;
5. Alternate communications between the member and its employees;
6. Alternate physical location of employees;
7. Critical business constituent, bank, and counter-party impact;
8. Regulatory reporting;
9. Communications with regulators; and
10. How the member will assure customers’ prompt access to their funds and securities in the event that the member determines that it is unable to continue its business.

If a firm does not include one of the elements addressed above, it must document the reason.  If the firm relies on another entity to perform certain functions, it must document the relationship with that other entity.

  • Plan Approval.  The firm must designate a member of senior management who is also a registered principal to approve the business continuity plan and to conduct the annual review.
  • Disclosure Requirements.  The firm must disclose how the business continuity plan can address and how the firm will respond to future business disruptions of varying scope.   The disclosure must, at a minimum, be made in writing to customers at account opening, posted on the firm’s web site (if one exists), and mailed to customers upon request.
  • Designating Emergency Contacts. The firm must designate two emergency contact persons.   The emergency contact persons must be associated persons.  At least one contact person must be both a member of senior management and a registered principal of the firm.  If the second contact person is not a registered principal, that person must be a member of senior management who has knowledge of the firm’s business operations.  If a firm only has one associated person, then the second contact person must be an individual who has knowledge of the firm’s business operations.
  • Updating Requirements.  The firm must update the emergency contact information in the event of any material change.  In addition, the firm’s Executive Representative or designee must review and if necessary, update the information within 17 business days after the end of each calendar quarter.

Conclusion

Having an appropriately tailored business continuity plan for your business is essential from both a regulatory and best practices perspective.  Managers should have robust programs in place and be ready to show examiners that all statements in the business continuity plan are completely accurate.

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Cole-Frieman & Mallon LLP provides comprehensive registration and compliance services for SEC registered investment advisers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Exemptive Relief from CPO Annual Audit Requirement

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Managers starting a commodity fund at the end of the year may seek relief from annual audit requirement

CFTC Regulations 4.22(c) and (d) require that each registered CPO file a certified annual report with the CFTC and distribute copies to pool participants within 90 calendar days after the pool’s fiscal year (“audit requirement”).  The principal purpose of these requirements is to ensure that pool participants (fund investors) receive accurate, fair, and timely information on the overall trading performance and financial condition of the pool.  In a situation where a futures/commodities hedge fund was established only a few months or so before the end of the fiscal year, conducting a certified audit at the end of the fiscal year may not be desirable due to costs.  Relief may be available to managers in this situation.  The CPO can request an exemption from the audit requirement from the CFTC.

This article explains how a manager can go about requesting and obtaining an exemption.

Exemptions on a Case-by-Case Basis

The CFTC’s Division of Clearing and Intermediary Oversight (“DCIO”) will grant or deny exemptive relief from the audit requirement on a case-by-case basis, based on each individual CPO’s factual circumstances.  When we spoke informally to a staff member at DCIO, he said that there is no prescriptive list of conditions that will automatically result in exemptive relief but the main factors they seem to take into account are:

  1. the pool has only a handful of participants,
  2. the pool has only a nominal amount of capital contributed and a nominal amount of total net assets, and
  3. each of the participants in the pool has provided a written waiver consenting to the CPO’s exemption from the audit requirement.

In many cases where the exemption was granted, DCIO still placed the following conditions on the CPO:

  1. the CPO must distribute unaudited annual reports to each of the pool’s participants (these unaudited annual reports must otherwise comply with the provisions of CFTC Regulations 4.22(c) and (d)–reprinted in full below), and
  2. at the close of the following fiscal year, the CPO must file an audited annual report that includes the previous unaudited period.

Requesting the Exemption by Email or Letter

DCIO seems to grant exemptions from the audit requirement in response to email or letter  requests from CPOs.  In a 2009 DCIO letter granting exemptive relief, the CPO sent an email to DCIO requesting the exemption.  DCIO found that granting relief in the CPO’s situation was not contrary to Regulation 4.22 nor the public interest.  In particular, it focused on the following facts:

  • the pool began operations in September of 2008,
  • the pool only had 8 participants,
  • the pool had total capital contributions between $300,000-$400,000 as of December of 2008,
  • the pool’s net asset value was between $60,000-$70,000, and
  • the CPO attached waivers from the 8 participants indicating their consent to the exemption.

In a 2010 DCIO letter, DCIO granted the exemption after a CPO sent DCIO a letter requesting the relief and attaching the client waivers.  DCIO reviewed the facts and found granting the exemption was not contrary to Regulation 4.22 nor the public interest.

It is important to note that exemptive letters bind DCIO only with respect to the specific fact situation and persons addressed by the letter and third parties may not rely upon it.  For a full explanation of the CFTC’s exemptive letters, visit the CFTC’s discussion on this topic.  If you are interested in filing for such exemptive relief with respect to your commodity pool, please contact Mallon P.C.

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Cole-Frieman & Mallon LLP provides comprehensive hedge fund start up and regulatory support for commodity pool operators.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Important Hedge Fund Articles

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As of the date we published this list of important hedge fund articles, the Hedge Fund Law Blog has over 600 posts.  In order to highlight some of the more important items on this website we have created the following list of articles which we think will be useful for most of our readers.  Articles without links will be forthcoming and we look forward to hearing your feedback on what information you would like to see in the future.  The categories include:

  1. Basics & Structure
  2. Offering Documents
  3. Service Providers
  4. Investment Adviser Regulation
  5. Futures & Commodities Regulation
  6. Marketing & Advertising
  7. Operational Issues

We would also like to remind managers who are thinking of starting a fund to view our Start Up Presentation.

BASICS & STRUCTURE

OFFERING DOCUMENTS

INVESTMENT ADVISER

FUTURES & COMMODITIES

MARKETING & ADVERTISING

OPERATIONAL ISSUES

ERISA

LAWS & REGULATIONS

OTHER ISSUES

FOREX

COLE-FRIEMAN & MALLON LLP QUARTERLY NEWSLETTERS

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Cole-Frieman & Mallon LLP, a hedge fund law firm, sponsors the Hedge Fund Law Blog.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Litigation Statement for CTA and CPO Disclosure Documents

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One of the more important requirements with respect to drafting the CTA and CPO Disclosure Documents is making sure that all appropriate litigation statements are included in the documents.  Under CFTC Regulations 4.24 (CPOs) and 4.34 (CTAs) the manager is required to disclose the litigation history of: (i) the management company, (ii) principals of the management company and (iii) the FCM and IB.  While (i) and (ii) are generally going to be easy to prepare, getting the litigation history for the FCM and IB will be dependent on the FCM and IB providing the manager or the manager’s attorney with a litigation statement.  Some FCMs and IBs do not have a litigation history and a statement to that effect will need to be included in the disclosure documents.

Below we have included more information on this requirement from the NFA Disclosure Document Guide and we have included the text of the CFTC Regulations.

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From the NFA guide to disclosure documents:

Litigation

The Document must disclose any material administrative, civil or criminal action, whether pending or concluded, within five years preceding the date of the Document, against the following persons (a concluded action that resulted in adjudication on the merits in favor of such person need not be disclosed):

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• The pool’s FCM and IBs, if any.

With respect to an FCM or an IB, an action is material if:

• The action would be required to be disclosed in the notes to the FCM’s or IB’s financial statements prepared pursuant to generally accepted accounting principles;

• The action was brought by the Commission (unless the action was concluded, did not result in civil monetary penalties exceeding $50,000, and did not involve allegations of fraud or other willful misconduct); or

• The action was brought by any other federal or state regulatory agency, a non-United States regulatory agency or a self-regulatory organization and involved allegations of fraud or other willful misconduct.

Where a matter is material, its description must include a recital of the nature of the action, the parties involved, the allegations or findings, the status of the action and the size of any fine or settlement.

Source: pages 34 and 35 of the disclosure document guide.

CFTC Regulation 4.24(l)

Litigation.

(1) Subject to the provisions of §4.24(l)(2), any material administrative, civil or criminal action, whether pending or concluded, within five years preceding the date of the Document, against any of the following persons; Provided, however, that a concluded action that resulted in an adjudication on the merits in favor of such person need not be disclosed:

(i) The commodity pool operator, the pool’s trading manager, if any, the pool’s major commodity trading advisors, and the operators of the pool’s major investee pools;

(ii) Any principal of the foregoing; and

(iii) The pool’s futures commission merchants and introducing brokers, if any.

CFTC Regulation 4.34(k)

Litigation.

(1) Subject to the provisions of §4.34(k)(2), any material administrative, civil or criminal action, whether pending or concluded, within five years preceding the date of the Document, against any of the following persons; Provided, however, that a concluded action that resulted in an adjudication on the merits in favor of such person need not be disclosed:

(i) The commodity trading advisor and any principal thereof:

(ii) Any futures commission merchant with which the client will be required to maintain its commodity interest account; and

(iii) Any introducing broker through which the client will be required to introduce its account to the futures commission merchant.

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Cole-Frieman & Mallon LLP provides comprehensive hedge fund start up and regulatory support for commodity pool operators.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Bart Mallon Quoted in Wall Street Journal on Hedge Fund Registration

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(www.hedgefundlawblog.com)

In an article published today in the Wall Street Journal, Bart Mallon of Cole-Frieman & Mallon LLP was quoted discussing the current and future role of the state securities divisions with respect to hedge funds.  After the implementation of the new SEC registration thresholds under Dodd-Frank, previously SEC registered hedge fund managers will be required to de-register from the SEC and register with the states.  Outside of the logistical hurdles involved with this process, the central issue for managers and investors is whether the states have the resources or expertise to deal with an increased workload.  This is an especially important question as more and more states like California face budget shortfalls and institute furlough days.

For more information on this specific topic, please see our survey on state securities divisions which includes information on number of examiners, number of furlough days, and the frequency of audits of investment advisers.

The Wall Street Journal article can be found here.

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Cole-Frieman & Mallon LLP provides legal support and hedge fund start up services to all types of investment managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

Costs to Complete New Form ADV Part 2

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SEC Estimates Preparation Costs of $3,000 to $5,000 for SEC Registered Advisers

We have been reviewing the SEC release related to the amendments to Form ADV Part 2.  Specifically we were interested, like many managers, in the amount of time it will likely take to complete the new Part 2.  Unlike the old Part 2, which was mostly check the box answers along with a Schedule F which required some prose, the new Part 2 will be in full “plain English” prose.  While most SEC registered firms have not yet begun the process to switch to the new Part 2, such advisers will likely begin the process soon and will want to know how much it will cost to complete new Part 2.

According to the SEC, most small and mid-sized SEC registered investment advisers will likely pay anywhere from $3,000 to $5,000 to have a law firm or compliance group complete the new Part 2 on their behalf.  Additionally, many states will be requiring new Part 2 so this means that state registered investment advisers will likely need to budget for these expected compliance costs.  Below we have reprinted the discussion from the release which specifically discusses the costs involved.

Please note that Mallon P.C. can help registered investment advisers complete new Form ADV Part 2.

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Release No. IA-3060; File No. S7-10-00
Amendments to Form ADV

Starting at page 84

We estimate that some advisers may incur a one-time initial cost for outside legal and compliance consulting fees in connection with preparation of Part 2 of Form ADV. While we received no specific comments on our estimate regarding outside legal costs in the Proposing Release, one commenter did state that compliance consultants assist a significant percentage of advisers in preparing their Form ADV.  As a result, we are changing our estimate to reflect a quarter of small advisers using compliance consulting services and a quarter of small advisers using outside legal services and to reflect half of medium advisers using compliance consulting services in lieu of outside legal services and a quarter of medium advisers still using outside legal services. We estimate that the initial per adviser cost for legal services related to preparation of Part 2 of Form ADV would be $3,200 for small advisers, $4,400 for medium-sized advisers, and $10,400 for larger advisers. [324]

[324] Outside legal fees are in addition to the projected hourly per adviser burden discussed above. $400 per hour for legal services x 8 hours per small adviser = $3,200. $400 per hour for legal services x 11 hours per medium-sized adviser = $4,400. $400 per hour for legal services x 26 hours per large adviser = $10,400. The hourly cost estimate of $400 on average is based on our consultation with advisers and law firms who regularly assist them in compliance matters.

We estimate that the initial per adviser cost for compliance consulting services related to initial preparation of the amended Form ADV will range from $3,000 for smaller advisers to $5,000 for medium-sized advisers.[325]

[325] Outside compliance consulting fees are in addition to the projected hourly per adviser burden discussed above. Based on consultation with compliance consulting firms who regularly assist investment advisers in Form ADV preparation, we estimate that small advisers will incur expenses of $3000 per year for the initial preparation of the new Form ADV and medium advisers will incur expenses of $5000 per year for the initial preparation of the new Form ADV.

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Cole-Frieman & Mallon LLP provides legal support and hedge fund compliance services to all types of investment managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

States Securities Divisions Amending Securities Regulations Post Dodd-Frank

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Washington State Proposes Amendment to Definitions

The Dodd-Frank bill has certainly created new responsibilities for the SEC and CFTC.  Also affected are the state securities divisions which have laws and regulations referencing, or based on, various federal securities laws.  Because federal laws have changed under Dodd-Frank, the state securities laws (generally known as “Blue Sky” laws) will eventually need to be amended as well.  Over the coming months we will see various state securities divisions propose changes to regulations designed to correspond to the new laws under Dodd-Frank.  One state, Washington (which is known to have a good securities division), has recently proposed rules to “amend the definition of “accredited investor” contained in its rules to conform to federal law through expedited rule making.”

Additionally, we may see state legislatures rewriting large parts of their securities laws to correspond with the changes at the federal level.  Such effort may be coordinated by NASAA or through another iteration of the Uniform Securities Act.

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Cole-Frieman & Mallon LLP provides legal support and hedge fund compliance services to all types of investment managers.  Bart Mallon, Esq. can be reached directly at 415-868-5345.

NFA Changes Post CFTC Audit

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The results of the CFTC’s audit of the NFA were released a few weeks ago and we have already begun to see a few changes to the way the NFA operates.

Access to BASIC Security Manager

Previously newly formed entities which were registering with the CFTC could start the registration process prior to formally being established.  Now, the NFA must have proof that the entity is in existence prior to granting security manager status.  Accordingly, groups wishing to register must wait until the entity is in existence and then submit the security manager form.  This will usually delay an initial application by about a week. We believe it would be more effective if the NFA made sure that the entity was established prior to submitting a registration application.  Absent such procedures, we believe that the security manager process should be streamlined and that access should be granted next day via email.  There is no good reason to have such a slow process just to access the online registration system.

Client withdrawals from account

Previously it was common for some CTAs to have some sort of lock-up period with respect to a trading program.   Now, the NFA will not allow a CTA to have a lock-up period because the client is always able to go to the FCM and cancel the account.  While from a technical perspective the client always has access to its own account and the CTA can’t control access to the account, many CTAs preferred the implicit protection afforded through the contractual agreement that the account would stay open during the lock-up.   By not allowing the lock-up language, CTAs will potentially be subject to greater and more frequent withdrawals from investors.

Revising Disclosure Documents

Many NFA Member firms will find out about the various new NFA procedures during the disclosure document revision process.  Moving forward, various deficiencies with disclosure documents that have been approved by the NFA in the past will need to be fixed (even though the documents were previously approved) as the managers revise the documents and seek instant filing or regular filing.

Please let us know if you have experienced any other changes with the NFA.

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Other related hedge fund law articles:

Cole-Frieman & Mallon LLP provides comprehensive hedge fund start up and regulatory support for commodity pool operators.  Bart Mallon, Esq. can be reached directly at 415-868-5345.