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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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.