Monthly Archives: February 2012

MarketsWiki Interview on Managed Futures Mutual Funds and CFTC Rule 4.5

Bart Mallon discusses Managed Futures Mutual Funds

As we discussed earlier, the CFTC has rescinded the Section 4.13(a)(4) exemption from commodity pool operator (“CPO”) registration. The CFTC also proposed changes to CFTC Rule 4.5 which would essentially require those managers to managed futures mutual funds to register with the CFTC as CPOs. Below is our discussion with MarketsWiki about Rule 4.5 and other issues affecting the managed futures industry.

Please contact us if you have any questions on Rule 4.5.



Cole-Frieman & Mallon LLP provides managed futures legal services. Bart Mallon can be reached directly at 415-868-5345.

CTA Expo Program in New York 2012

The CTA Expo is probably the best series of events for CTAs in the United States (and now in London) and the New York event is coming up soon. The managed futures industry will be in New York on April 18th for the NIBA Conference event and on April 19th for the CTA Expo. Both events will be at the NYMEX building. As we have for the last few years, Cole-Frieman & Mallon will be a sponsor of the NIBA event and will be attending the expo on the next day. We look forward to seeing everybody there.


April 18, 2012

4:30 – 6:00 Joint NIBA/CTAEXPO Cocktail Party, Sponsored by Telvent DTN

April 19, 2012

8:30 – 9:30 Continental Breakfast

Sponsored by DMAXX

9:15 – 9:30 Welcoming Remarks

Bucky Isaacson and Frank Pusateri

9:30 – 10:00 An Insider’s View of Marketing

Elaine Llyod | Axion Services Group

Sponsored by BNY Mellon

10:00 – 10:30 How Family Offices Select Managers

Audie Apple | Bessemer Trust

Sponsored by Horizon Cash Management

10:30 – 11:00 Coffee Break

Sponsored by Credit Suisse

11:00 – 11:30 Marketing in Latin America

Todd Scanlon | Bank of America Merrill Lynch

11:30 – 12:15 KEYNOTE SPEAKER

Bob Swarup | PIC

Sponsored by Trading Technologies

12:15 – 1:15 Lunch

Sponsored by ICE


Chuck Johnson | Tano Capital

Sponsored by Eurex

2:00 – 2:30 Marketing in Asia

Ilsoo Moon | Quark Capital

Sponsored by Dorman Trading

2:30 – 3:00 Compliance Issues in Today’s Regulatory Environment

Kate Dressel | Strategic Compliance Solutions LLC

David Matteson | Drinker Biddle & Reath LLP

Sponsored by Symphono

3:00 – 3:30 Coffee Break

Sponsored by Patsystems

3:30 – 4:00 Press Panel

Ron Weiner | RDM Inc.

Sandra Smith | FOX Business Network

Moderator: John Conolly | CME Group

Sponsored by Gemini Fund Services

4:00 – 4:30 The Psychology of Successful Trading

Denise Schull | Trader Psyches

Sponsored by Investor Analytics

4:30 – 6:00 Closing Cocktail Party

Sponsored by NYSE Liffe US and NYSE Liffe


Cole-Frieman & Mallon LLP provides legal and compliance support to CTAs and CPOs. Please feel free to contact us directly or reach out to Bart Mallon at 415-868-5345.


New York City Unicorporated Business Tax Update

Recent Audits May Impact Fund Structures and Management Company Expenses

There may be a number of reasons for a manager to create separate legal entities to serve as the management company and a fund’s general partner. In particular, New York-based managers have typically done this due to New York City’s tax treatment of fees earned by fund managers. However, a recent move by the New York City Department of Finance (the “Department”) may hearken a change to this approach, and the manner in which fund managers analyze and document their expenses.

Background on New York UBT

New York City’s Unincorporated Business Tax (“UBT”) currently is, and has been historically, imposed only on management fees earned in the city, but not on incentive allocations. This tax treatment was formally approved by a statutory amendment to the UBT law over 15 years ago. For this reason, fund managers have formed one entity to be the management company that will receive the asset-based management fees, and another entity to serve as a fund’s general partner and receive the profits-based incentive allocations.

Management fees are generally used to cover both the management of the fund, and the administrative operations of the management company. Expenses related to these functions are deductible against gross income when calculating the management company’s UBT liability. The tax rate is 4% of the net UBT income.

The incentive allocations to the general partner are excluded from UBT on the basis of a statutory exemption for entities that are “primarily engaged” in self-trading for its owners and does not otherwise operate a business in New York city, as defined in the UBT law (this is because all of the administrative/operational functions are performed by the management company).

Developments in the New York City Department of Finance

Recent audits by the Department may portend a shift in this tax treatment and hence, implications for fund managers in how they structure and run their businesses. Specifically, the Department asserted that some portion of a management company’s operating expenses is ultimately attributable to tax exempt income. Because of this, the Department determined that at least some of these expenses should not be used to reduce the management company’s UBT liability. In effect, this approach will attribute some of the expenses to the tax-exempt incentive allocation that the general partner earns, rather than allowing 100% of such expenses to offset the management fee. Put more bluntly, the Department will disallow some of a management company’s expenses in calculating the net UBT income.

Interestingly, while the redistribution of tax among entities under common control is explicitly permitted under Federal tax law, the UBT law is silent on this question, though some commentators suggest that authority for this is implied because the UBT calculation starts with Federal taxable income.

As a result of this new approach, the management company’s net UBT income would increase to the extent that expenses are disallowed, and the management company would owe more tax. In years where performance is significantly up (meaning a higher incentive allocation), the tax increase would likely be more pronounced; in contrast, when performance is down and there is no allocation, the management company may still be permitted to deduct expenses as it has done previously.


It is important to note that the Department’s approach in the audits has not been formally adopted, nor implemented in the UBT law itself. However, given the unpredictability inherent in the Department’s expense-shifting approach in the audits, we recommend that New York-based fund managers evaluate their expenses and carefully document how they relate to the operations of the management company to maximize the ability to deduct them for purposes of calculating their net UBT income.


Cole-Frieman & Mallon provides hedge fund formation and other legal services to managers in New York and throughout the country.  Bart Mallon can be contacted directly at 415-868-5345.

CFTC Rescinds 4.13(a)(4) CPO Registration Exemption

Increases Other Compliance Obligations for CPOs and CTAs 

The CFTC recently adopted final rules amending regulations applicable to both CPOs and CTAs. The CFTC also proposed rules with respect to Regulation 4.5 that would require managers to managed futures mutual funds to register as CPOs. Some of the other changes included:

  • CPOs subject to “lite-touch” regulation under the 4.7 exemption must now provide annual audited returns to investors in their funds
  • Changes the 4.5 exemption from CPO registration for managers to managed futures mutual funds
  • Requires CTAs and CPOs who file exemptions under 4.5, 4.13 and 4.14 to reconfirm the exemption on a yearly basis
  • Adds new Regulation 4.27 requiring CTAs and CPOs to file Form PFForm CPO-PQR and From CTA-PR
  • Requires CTAs and CPOs to provide investors with new disclosures regarding swap transactions, if applicable

Additionally, the CFTC has proposed regulations with respect to harmonizing CFTC regulations and SEC regulations with respect to managed futures mutual funds.  We will be providing additional information on these proposals in the coming days and weeks.

The full CFTC notice can be found here.

The final CFTC regulations can be found here: CPO & CTA Compliance Final Rules

Fact sheet: CTA & CPO Compliance Fact Sheet

Proposed Regulations for Managed Futures Mutual Funds: Proposed CPO Registration Requirement for Mutual Fund Managers


Cole-Frieman & Mallon LLP provides legal services to the managed futures industry.  Bart Mallon can be reached directly at 415-868-5345.

NFA Requests Information from CPOs on MF Global Impact

Response Due to NFA by February 14, 2012

CPOs providing advice to commodity pools which used MF Global (MFG) as a FCM have faced a number of issues after the bankruptcy. As the NFA announced shortly after the bankruptcy, CPOs were responsible for alerting investors in the commodity pool about the bankruptcy and related issues. Some CPOs also had to implement certain liquidty type provisions including potentially creating reserves and/or side-pocketing the MFG assets. Now, the NFA is requesting further information from CPOs with respect to their dealings with MFG. Most notably, the NFA reminds CPOs that they are required to update their fund disclosure documents before soliciting new investors if they had assets at MFG.

The NFA notice is reprinted in full below.  For information on disclosure document reporting for CTAs who had assets at MFG, please see our previous post CTA Guidance re: MFG.

For more of our thoughts on the MFG bankruptcy, please see our post on Managed Futures Regulation Post-MFG.

If you are a CPO that needs help updating your disclosure documents or help with the annual CPO questionnaire, please contact us to discuss.


February 3, 2012

CPOs with Pool Assets Held with MF Global, Inc.


The bankruptcy proceeding initiated on October 31, 2011 involving MF Global, Inc. (“MFG”), have affected a number of CPOs, as well as the pools they operate. Any CPO with pool(s) affected by this event should have given notice to the current participants of each affected pool regarding the valuation of the assets held at MF Global, Inc. and any withdrawal restrictions that were implemented. Further, any CPOs that have or intend to solicit new participants in a pool affected by the MFG bankruptcy proceeding must update the affected pool’s disclosure document to disclose any material information regarding this event.

In light of these circumstances, NFA is requiring every CPO Member to inform NFA whether

it had any pools (not including 4.13 exempt pools) affected by the MFG bankruptcy proceeding by answering the first question on NFA’s Firm and DR Information Questionnaire: Those CPOs operating any pool(s) that were affected by the MFG bankruptcy proceeding are required to answer the Special Request Questions for each affected pool, which appear at the top of the CPO Questionnaire.

CPOs must complete the applicable sections of the questionnaire by February 14, 2012. Please note that if the CPO’s annual questionnaire has come due, the CPO must complete the entire questionnaire, including the information requested above, for each pool. If you have any questions, please do not hesitate to contact any of the following individuals:

Susan Koprowski, Compliance Manager, at (312) 781-1288 or at [email protected]

Kaitlan Chi, Compliance Manager, at (312) 781-1219 or at [email protected]

Mary McHenry, Senior Manager, at (312) 781-1420 or at [email protected]


Cole-Frieman & Mallon LLP provides fund formation advice to CPOs and provides managed futures compliance and regulatory support to both CPOs and CTAs. Bart Mallon can be reached directly at 415-868-5345.

Managed Futures Regulation Post-MF Global Bankruptcy

Below is an article I wrote about how the managed futures industry is likely to react after the MF Global bankruptcy. I originally began drafting the article at the end of 2011 and finished it in the first week of January 2012.  As we have already seen, the industry is in fact moving towards addressing some of these issues and ultimately I believe that regulatory and other changes will increase the vitality of the managed futures industry.

The article was originally published as part of the Marcum Private Investment Forum newsletter and can be found here.  Please feel free to contact us if you have any questions or comments on the article.


MF Global Bankruptcy to Shape Managed Futures Regulation in 2012

By Bart Mallon, Esq. Partner, Cole-Frieman & Mallon LLP

It was a combination of the Lehman bankruptcy and the Madoff fraud that led an angry and embarrassed Congress to publicly castigate the SEC for not properly doing its job. What came to bear was the passage of the Dodd-Frank Act which ushered in new laws for the SEC and the CFTC to implement in short order and with limited budgets. The CFTC is in the middle of a similar event which saw the 8th largest bankruptcy in U.S. history as MF Global (MFG) declared bankruptcy on October 31, 2011. The biggest revelation, however, might have been that $1.2 billion of customer money was missing. The fact that there was the potential for a “shortfall” in a managed futures account was shocking – the industry that had prided itself so much on the sacrosanct customer account was now trying to make sense of how something like this happened.

While the various investigators, including the FBI, are trying to figure out where the money is and what transactions are valid, Congress and others are debating the future of regulation for the industry. The Commodity Futures Trading Commission (CFTC), the governmental agency which oversees the managed futures industry, is dealing with not only the MFG bankruptcy but a whole host of other issues. The MFG bankruptcy has brought to light issues with the regulation of the managed futures industry – (1) the practice of utilizing self regulatory organizations (SROs) to oversee important entities within the industry, (2) no “insurance” for margin in managed futures customer accounts and (3) lack of proper funding for the CFTC. Ultimately these issues will need to be addressed and will shape how the industry is regulated moving forward.

Self-Regulation – Is the Fox Watching the Henhouse?

Prior to MFG bankruptcy, the managed futures industry prided itself on the fact that “not a single cent” was ever lost in a customer account due to theft from a futures commission merchant (FCM). Perhaps because of this, the industry seemed unconcerned about the hodge-podge of government agency oversight combined with self-regulation over the managed futures participants. The central SRO for MFG was the CME Group, the world’s largest futures exchange which includes the CME, CBOT, NYMEX and COMEX exchanges. The CME Group is a publicly traded company subject to oversight by the CFTC with respect to its own operations and is also subject to oversight of its supervision of MFG.

MFG ran most of its clearing business through the CME. This means that while the CME derived substantial revenue from MFG, it also was in charge of overseeing MFG to make sure the laws and regulations under the Commodities Exchange Act (CEA) were being followed. While it seems like this will be a conflict of interest on its face, this is how the futures industry works. The argument for having the CME Group act as the SRO to MFG is that as the central exchange, it was in the best position to regulate MFG. The futures industry is an altogether different beast from the securities industry and the CME Group, because of its understanding of the relationships between the firms, was in the best position to oversee MF Global and make sure the firm was complying with all of the requirements of the Commodities Exchange Act. The CME Group is now being investigated – what did it know about MFG’s shortfall and when?

It is easy to paint MFG as simply the bad actor by hiding transactions from the CME Group. But we will learn more as the investigation moves on and if we find that the CME Group was deficient in its oversight of MFG, the SRO model (especially in instances where there is potential conflicts of interest) will need to be reexamined. If it is discovered that there were deficiencies with the SRO oversight of MFG, this will likely create liabilities for the CME Group and may change which SROs can oversee which organizations.

No Insurance for Futures Accounts

The second issue which the MFG bankruptcy highlighted is that there is no insurance for managed futures accounts. In the segregated account structure, the margin required for each futures contract is supposed to be kept in the customer’s name. With respect to the MFG bankruptcy, the $1.2 billion in missing customer assets meant that when customer accounts were transferred from MFG to the various other FCMs only a certain percentage of the margin was transferred to the new FCM, initiating additional margin calls at the new FCM. Many investors were not able to meet the additional margin calls at the new FCM and thus their positions were liquidated. Forced liquidations left a number of investors either unhedged or worse. Small farmers that held accounts at MFG for hedging their crops were especially hard hit.

On the securities side there is the Securities Investor Protection Corporation (SIPC) which provides insurance coverage of up to $500,000 of securities and up to $250,000 in cash in the event that a broker-dealer fails. During the Lehman bankruptcy and Madoff fraud investigation, the SIPC was available to assuage the fears of smaller investors by acting as a backstop to potential losses. Indeed, the SIPC was formed for events just like Lehman. There is no similar insurance program for the margin held in segregated accounts at FCMs.

There have been calls for creating an insurance-like mechanism for futures accounts. The benefits are clear – a guarantee of customer accounts will protect the smaller investors like the farmers and other smaller hedgers. However, there are cost issues to consider and the creation of an SIPC-like mechanism for the managed futures industry needs to be initiated at the Congressional level. The managed futures industry will likely push back any such proposal because of the significant costs involved with implementing such a structure. Timing may also be an issue – the CFTC faces a funding shortfall in addition to Dodd-Frank mandates and other proposed rulemaking functions.

CFTC Funding Issues Present Big Problems for Industry

The CFTC lacks proper funding to adequately protect investors and maintain the integrity of the managed futures industry. The Congressional appropriations process is obviously a political game at which both the SEC and CFTC have failed. The two federal agencies charged with maintaining the integrity of the investment universe are woefully underfunded given their mandates. It is this underfunding that is perhaps the biggest issue for the integrity of the managed futures industry which is why the CFTC needs more money from Congress. More money also helps the CFTC to properly implement parts of the Dodd-Frank Act as well as other adopted and/or proposed regulations.

Dodd-Frank & Swaps Clearing

One of the central pieces of the Dodd-Frank Act is the requirement that swaps be traded and cleared on exchanges. The multi-trillion dollar industry has been unregulated – making counterparties liable to one another and subject to counterparty risk. The intermediation of a clearing house not only creates logistical issues (who, how, when, at what price) but also requires complex, detailed regulations. The CFTC, in conjunction with the SEC with respect to certain matters, was tasked with creating these regulations from scratch. This will be the largest undertaking for the CFTC in 2012 and will likely consume more resources than the MFG investigation.

Other Regulatory Proposals

In addition to the swaps regulations, there are a number of other important regulatory proposals which, if implemented, drastically changes how the managed futures industry operates.

Repeal of Regulation 4.5

CFTC Regulation 4.5 essentially exempts certain mutual funds that invest in managed futures from the commodity pool operator (CPO) registration provisions. This means that mutual funds that are essentially publicly traded commodity pools are only regulated by the SEC, who has no experience dealing with the ultimate underlying investments.

In January of 2011 the CFTC proposed repealing Regulation 4.5. If this proposal is adopted as written, managers to managed futures mutual funds need to register as CPOs with CFTC (and become members of the NFA, subject to NFA oversight). This requirement increases the cost burden for these mutual funds and subjects them to great regulatory oversight.

Repeal of Regulation 4.13(a)(4) and 4.13(a)(3)

Regulation 4.13(a)(4) provides an exemption from CPO registration to those managers who provide advice to a fund (commodity pool) which only has investors who are qualified eligible persons (QEPs). In general, QEPs are investors who meet a higher net worth requirement than accredited investors.

The CFTC also proposed the repeal of Regulation 4.13(a)(3) which provides a “de minimis” exemption from CPO registration to those commodity pool (i.e. hedge fund) managers who only trade a small amount of futures in addition to securities. If 4.13(a)(3) was repealed, all fund managers who trade any amount of futures will be required to become registered as a CPO. It seems that right now this proposal will likely fail, leaving hedge fund managers with the possibility of escaping CPO registration.

Proposed with the Regulation 4.5 repeal, the Regulation 4.13(a)(4) and (a)(3) repeal requires a large number of managers who are not currently registered with the CFTC to register and become NFA members. Again, this will increase the number of firms subject to NFA (and ultimately CFTC) oversight.

Position Limits

Dodd-Frank Act mandated for the CFTC to impose position limits across different markets, including traditional futures markets, option on futures or commodities traded on a regulated exchange, and trading in swaps. These position limits will not apply to bona fide hedging transactions and counterparties to a bona fide hedge may also be eligible for an exemption. In general, position limits set at 25% of estimated physical deliverable supply for spot-month positions and, with respect to non spot-months, at 10% of open interest (based on futures open interest, cleared swap open interest, and uncleared swaps open interest) in the first 25,000 contracts and 2.5% above that level. There will also be additional reporting requirements for traders exceeding a non-spot-month position visibility level in energy and metal contracts. The industry is vehemently fighting this proposal.

Other Proposals

in addition to these proposals, the CFTC has other standard enforcement and regulatory issues that have become focus areas. These include high frequency trading and co-location.

It seems clear that given the Dodd-Frank Act’s inclination toward more oversight and regulation of the investment management industry, as well as the recent regulatory fumbles involving MFG, some of these proposals are likely to be adopted. Therefore, managers are going to be required to register as CPOs and the NFA will be the watchdog. But, the NFA, like the CFTC, is a resource limited organization and the ability to effectively monitor member firms will depend on the NFA’s ability to scale to meet the regulatory requirements.


Over the next several months and potentially years the MFG bankruptcy will be sorted out, and hopefully investors will be made whole. During the process of rebuilding the industry to handle the managed futures markets in a time of significant growth in trading and technology, the focus should be on doing whatever is necessary to bring confidence back into the managed futures markets. This will include examining the role of the SRO industry moving forward, examining an insurance SIPC-like program for futures customers and providing more resources for the CFTC. Moving forward it will be Congress who will need to show leadership and provide the CFTC with the funding it will need and the appropriate legislative tools to make sure the industry becomes safer. Hopefully, that will be the good which arises from the unfortunate events that led to the MFG bankruptcy.


Bart Mallon is a Partner at Cole-Frieman & Mallon LLP where his practice focuses on the investment management industry, specifically working with hedge fund managers and groups in the managed futures industry. Mr. Mallon also founded and runs the widely-read Hedge Fund Law Blog.