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This is a photo of the National Register of Historic Places listing with reference number 7000063

Tuesday, October 22, 2013

CFTC CHAIRMAN GENSLER'S REMARKS BEFORE AMERICANS FOR FINANCIAL REFORM

FROM: U.S. COMMODITY FUTURES EXCHANGE COMMISSION 
Keynote Remarks of Chairman Gary Gensler before the Americans for Financial Reform and Georgetown University Law Center’s Financial Transparency Symposium

Note: this transcript was edited and abbreviated for clarity

October 11, 2013

I want to thank the Americans for Financial Reform and Georgetown Law Center for this invitation. We’re in the midst of a government shutdown so I’m going to give a presentation from some notes, not the usual prepared text speech.

Five years ago, the U.S. economy was in free fall.

Five years ago the swaps market was at the center of this crisis. It cost middle class Americans – and hardworking people around the globe – their jobs, their pensions and their homes.

President Obama and Congress came together and they responded with historic reforms to bring the swaps market into the light through transparency and oversight.

And now, with the Commodity Futures Trading Commission’s (CFTC) near completion of these reforms, a true paradigm shift has resulted.

A paradigm shift to a transparent, regulated marketplace that benefits investors, consumers and businesses in this country and around the globe.

The CFTC, through 61 final rules, orders, and guidances, has brought traffic lights, stop signs, and speed limits to this once dark and unregulated market.

Through these reforms, we have stood up an entire comprehensive regime covering:

Transparency and access – which helps promote greater competition and market efficiency;
Clearing – promoting access and lowering risk;
Oversight of intermediaries and customer protection – to better protect the public;
Registration requirements – ensuring there is actual compliance with the reforms; and
New enforcement tools – to guard against market abuses.
These completed reforms have resulted from an active public debate –

First in Congress and the Administration, and then
Subsequently through our public rule making. We have received nearly 40,000 comment letters on these various rules – and that’s not even counting the 19,000 comments on the Volcker Rule. We’ve conducted 2,200 plus meetings that we’ve put on our website.
I thought I would review where we stand today in this critical reform in the context of a dozen debates that have gone on around this reform.

The first three debates relate to the scope of reform.

First, which products should be covered?

Congress and the Administration chose not to limit regulatory reform only to those products or entities that received the most attention during the financial crisis, which were credit derivatives. The comprehensive regulatory framework now covers the full suite of swaps products. This includes interest rate swaps, currency swaps, commodity swaps, equity swaps, credit default swaps – the center of the crisis – as well as derivative products that may be developed in the future.

Credit default swaps may have been the leading culprit in the crisis, but omitting the markets for interest rate, currency swaps and commodity swaps would have left, the market still opaque and inefficient. And we needed to shine the same light and lower risk in all of the OTC derivatives markets, not just credit derivatives.

Now there was some debate about foreign currency forwards and swaps. Though they are exempted from clearing and the trade execution mandate, Congress and the CFTC worked to ensure that they have to be reported into trade repositories, and also that they come under business conduct standards. We’ve worked closely with the foreign currency community, and they have changed their back office documentation as of June of this year.

Second, which participants should be covered through reforms?

Congress and our rules ended up with a three-tiered system of participant reforms: swap dealers at the center; then financial institutions; and finally, non-financial institutions, or so-called end-users.

It is only with comprehensive regulation of the dealers at the center of this market that we can really oversee and regulate the entire derivatives markets. This was one of the key reforms that we laid out with Secretary Geithner and Mary Schapiro during the presidential transition five years ago. Subsequently, we worked with then Chairman Harkin of the Senate Agriculture Committee and others to ensure that there would be oversight of the dealers themselves.

Through regulating the dealers, we ensure that reform applies to both standardized and customized products.

You might remember the debate. Would there be an allowance for a bilateral or customized swap, ensuring the economy could get the benefit of all these hedging products? The answer was yes. Customized products would continue, but we would need to oversee the dealers that are offering those swaps.

By giving the CFTC clear authority to set business conduct standards, swap dealers and their nearly 10,000 counterparties around the globe have changed their swap documentation, lowering risk.

Today, we have 86 registered swap dealers and two major swap participants. This group includes the world’s 16 largest financial institutions in the global swaps market or what’s called the G16. It also includes a number of energy swap dealers.

The second group of market participants was financial institutions. There was a debate four years ago as to whether financial institutions were to be covered by reform. Our thinking was that if we didn’t include hedge funds, insurance companies, mortgage companies and the like, we would leave a significant part of the interconnected financial system outside of reform. Though not required to register as dealers, they came under two of the very critical reforms – the required clearing and the required trade execution. Congress did that, and we’ve executed on that plan.

The third group of market participants is the non-financial participants – the so-called “end-users.” It’s really the end-users, the non-financial side of our economy, that provide 94 percent of private-sector jobs in America. They only make up a small, single-digit percent of the swaps market. End-users were exempted from clearing and many other rules. For instance, the Commission’s proposed rule on margin provides that end-users do not have to post margin. They do have some responsibilities for recordkeeping and reporting.

Third, what would be the cross-border scope of reform?

Would reform just be territorial, such that only that which happened within the borders of the United States were covered? Or would it extend further?

Congress recognized that risk knows no geographic border. Look at AIG – it nearly brought down the economy – its operations were in London. It was actually registered as a French bank with a branch in London.

AIG wasn’t the only one. Lehman Brothers, Citigroup, Bear Stearns – Bear Stearns hedge funds, by the way, were incorporated in the Cayman Islands, as well as Citigroup’s off-balance-sheet Structured Investment Vehicles (SIVs). Ten years earlier, there was Long-Term Capital Management, a hedge fund operated out of Connecticut. You would have thought, as I did on a certain Sunday in September of 1998 when I visited it, that it was a U.S. person, even though it was booking its $1.2 trillion derivatives book in its Cayman Island affiliate.

Congress knew that the nature of modern finance is that financial institutions commonly set up hundreds, even thousands of institutions around the globe. When Lehman Brothers went down, it had 3,300 legal entities. When a run starts at any part of an overseas affiliate or branch in modern financial institution days, risk knows no geographic boundary. It comes right back here, just as our housing risk went offshore to other countries.

What Congress made clear in reform was that the far-flung operations of U.S. enterprises are to be covered. Congress said this in key words. We really need to thank Chairman Frank because he reached out to our agency and asked how to deal with what he called “risk importation?”

Our remarkable staff at the CFTC worked with his staff on the key words in the statute that say if it has “a direct and significant connection with activities in or effect on Commerce of the United States” it’s covered by reform. We were not going to just take a territorial approach. That’s really because Chairman Frank had the vision and foresight, asked for advice, got advice, and included, in a bipartisan way at the time, these key words in the statute.

The CFTC, coordinating closely with global regulators, completed cross-border guidance in July. Swaps market reform would cover transactions between non-U.S. dealers and guaranteed affiliates of U.S. persons. Why guaranteed affiliates? Because their risk can come right back here. Reforms also cover swaps entered into between two guaranteed affiliates or with the offshore branches of U.S. banks. Another more recent lesson comes from the events surrounding JPMorgan Chase’s Chief Investment Office, which booked their credit index swap trades through their London branch, which was fully part of the bank.

After allowing time for market participants to phase in compliance, this week, much of our cross-border guidance became effective. Yesterday, the final U.S. person guidance became effective. Based on that, hedge funds and other funds whose principal place of business is in the U.S. or majority owned by U.S. persons will clear and come into many other reforms.

Hedge funds like Long-Term Capital Management today would now clear standardized swaps. So no longer would a P.O. Box in the Cayman Islands or another nice vacation holiday spot be good enough to get out of reform.

Further, yesterday foreign branches of U.S. persons, that means branches of big U.S. banks, and guaranteed affiliates of U.S. financial institutions now have to comply with the clearing requirement.

Now, let me turn to the big decisions on substance.

Let me start with transparency.

Key to promoting efficiency in markets is transparency and access. Adam Smith in the Wealth of Nations wrote about this over 200 years ago. He contended that if the price of information is lowered or you make information free, in promoting such transparency, the economy benefits. Similarly, if access to the market is free, everybody gets to compete.

Transparency and access was not the swaps market as we knew it in 2008. It was opaque. Most people in the market couldn’t see the pricing, and access was really dominated by large dealers with trillion dollar plus balance sheets.

In bringing forward reform, there was a debate about whether transparency to regulators was enough or if we also needed public market transparency. Congress and the Administration determined that regulatory transparency wasn’t enough. We have put in place swap data repositories (SDRs) to provide transparency to regulators, and as of two weeks ago, there was $400 trillion notional of swaps in the data repositories (market facing and single counted swaps).

But that’s not enough. Adam Smith was about promoting transparency to the public, and that’s what Congress believed as well.

First, Congress responded that we need post-trade transparency. As of December 31 of this past year, we started putting it in place, and as of September 30, the last compliance date, the public and end-users can see the price and volume of each transaction as it occurs on a website, like a modern-day ticker tape.

Due to an amendment sponsored by Sen. Jack Reed during the conference, this post-trade transparency covers not only those transactions on an exchange or on a registered platform, it covers the entire marketplace – including customized swaps and off-exchange swaps.

Also Congress adopted an initiative to make sure there is transparency before the transaction. This covers the portion of the market for swap dealers and financial institutions trading swaps that are required to be cleared and made available for trading on a platform.

Starting this past week, on October 2, the public began to benefit as swap trading platforms, called swap execution facilities (SEFs), came under common-sense rules of the road. SEFs will require that the dealers and non-dealers alike are able to get impartial access -- another part of Adam Smith’s writings from 200 years ago.

Seventeen SEFS are currently registered and operating. It is truly a paradigm shift. It’s still early, but just to give you a few numbers, the first day there was about 1,200 trades on this collection of SEFS. Two or three days ago, it was 1,800 trades.

We do understand that there are going to be issues that arise. Just as we have for other reforms, we are going to try to work with market participants to smooth the transition. But let there not be any doubt – over time, market participants will benefit from enhanced pre-trade transparency because it brings competition into the marketplace.

A fifth key decision was regarding requiring central clearing.

Clearing has existed since the 1890s. It lowers risk to the market. The debate was not whether there was going to be clearing. It was who was going to be covered by it. Where Congress came out is that financial actors would be covered as well as the dealers.

The dealers in 2009 came together, and it’s been well reported, and said they could live with clearing, but they were contending it should be mandated only for between dealers. That was because they wanted to lower their risk between themselves. Congress responded and said no, it needs to cover 90-plus percent of the market. It has to cover financial enterprises as well to lower the risk of that interconnected market.

This month, with the completion of phased implementation, mandatory clearing of interest rate and credit index swaps is a reality for dealers, hedge funds, and other financial institutions. And with yesterday’s phase-in, it’s now also a reality for these P.O. Box hedge funds as well, and for the branches and guaranteed affiliates around the globe. In mid-September, 72 percent of new interest rate swaps were being cleared.

In the data repositories, there are currently $330 trillion of interest rate swaps, and $182 trillion, or 54 percent, were cleared.

The sixth key debate was regarding access.

Back to Adam Smith’s writings, how do you make a market competitive? You make information free, and you make access free. Congress got this right. It required, and the CFTC has followed, impartial access to trading venues. As these 17 SEFs have gone live, we are looking at each of their rulebooks to ensure they really provide impartial access -- that it’s not just a dealer-dominated platform, but other financial institutions and market participants can have access and compete in the marketplace.

When we come out of the shutdown, we’ll be calling up a few of these platforms and saying “I don’t think that’s consistent with the spirit of what Congress put in place.” Impartial access really means that the non-dealers as well as the dealers, the non-clearing members as well as the clearing members, have access. All of these parties can make bids and offers on a central-limit order book. All can respond as well as request quotes in an RFQ system. There’s not supposed to be two rooms in a swap execution facility, one for the insiders and one for the less dealer-oriented group.

Open access to clearing was a key piece that Congress included in reform as well. That means that the clearinghouses have to take swaps trades even if it’s not from their sister or affiliated trading platform. Of the 17 registered SEFs, only one of them is affiliated directly with a clearinghouse, and the other 16 are not. They all actually do have access to the main clearinghouses. This is significant.

We also put in place something called straight-through processing. It’s highly technical, but it was significantly debated. What it comes down to is – will there be real-time processing of a trade to a clearinghouse. Why is it critical? Because it creates great access when everybody knows that if they intend to clear a trade, they don’t have to worry about their counterparty’s credit risk. In the 1980s and 1990s and into the next decade, swaps became centered and concentrated with the bank sector because the banks are in the business of extending credit, and they have very large balance sheets. To bring access to everybody else, you need this highly technical, specialized thing called straight-through processing or real-time processing.

With regard to SEFs, we put out guidance on September 26 to ensure that straight-through processing is a reality, that it’s not just something in the CFTC rulebooks. That’s what we do, every step of the way. We’re trying to ensure that the vision of Congress, the vision of the Administration happens.

A seventh key decision related to intermediaries.

Were we going to register them or not? Registration or licensing means if you go on the roads, you have passed some test. You also are consenting in various states to the jurisdiction or the authority of the police. Registration is a critical part of reform – for dealers as well as to many others. I see Pat McCarty back there who worked for Sen. Blanche Lincoln. He ensured the word “swap” was put into each and every statutory definition for intermediaries – commodity pool operators, futures commission merchants, introducing brokers, every spot. The registration regime had to include swaps, not just futures.

An eighth key decision was on customer protection. This was not so much a decision Congress had – that was straightforward at the time. But after Dodd-Frank passed, we had to go back and ask -- what do we do to better protect customers? There were a lot of debates. We decided to reverse the loosening made in 2003-2005 on the investment of customer funds, in Rule 1.25. We required clearinghouses to move to something called gross margining -- they can no longer net two customers’ positions against each other. But there’s more that we need to do on customer protection when you look at the events in the last two years and the failings of a couple of big firms in that area.

A ninth key decision that Congress made was repealing what was called the “Enron loophole.”

You might remember that a law passed in 2000, the Commodity Futures Modernization Act, which included provisions that various trading platforms didn’t have to register with the CFTC. They didn’t have to have that driver’s license to be a trading platform. These platforms, whether they were for energy, foreign currency or interest rates, they didn’t have any oversight at all. Congress debated it, and it was a long debate. It reached its crescendo in the summer of 2008. There was a farm bill that passed that year that moved to close the “Enron loophole” that was partially successful. I’d even note that in June of 2008, then Senator Obama put out a release calling for fully closing the “Enron loophole.”

Why do I focus on this? Because it spilled over into the debate about SEFs. A footnote in the SEF rule, Footnote 88, has gotten much attention, both by the media and market participants. This Footnote 88 is just confirming what Congress did -- Congress closed the “Enron loophole.” I don’t see what the discussion is here. We put a footnote in confirming that Congress had closed this loophole. What it means is that all the platforms as of October 2 needed to register.

Now there are some questions that have come up about jurisdiction. What will trigger this registration? Which platforms will trigger it? I think that if anybody is asking the question, they may want to read the guidance we did on cross-border in July.

My own conservative advice is that if a multilateral trading platform itself is a U.S. person, they probably ought to register. If a platform itself is operating in New York or Chicago or elsewhere in the U.S., you’ve got to think that you’ve got a connection to activities or commerce in the U.S.

I would also say that if you permit U.S. persons or persons located in the U.S. – you’ve got a lot of folks located in New York or Connecticut or Chicago that are using your platform – you’d think that the platform has a direct and significant connection to the activities in the U.S., whether you’ve given direct or indirect access. My conservative advice would be that you would want to register.

I recognize that this approach would trigger some SEF registrations for foreign-based platforms that are already registered with their home country. We’ve had one such platform actually reach out to us from Australia. It’s going to register with us, and we’re working with the Australian home country regulators. We’re prepared to figure out where we might defer to those home country regulators. But the registration itself is important so that we have some oversight, some licensing if I can use that analogy.

We also along the way registered many commodity pools that had previously not registered with the CFTC because of exemptions from 2003. The repeal of these exemptions was actually the case that went to the DC Circuit.

A tenth key decision was on enforcement tools.

Prior to Dodd-Frank, our enforcement authority was more narrow. In particular, our anti-manipulation rules required us to prove that someone intentionally created an artificial price. Dodd-Frank filled gaps in our authority. As a result of Senator Cantwell’s amendment and our new rules, we have broad powers to prohibit reckless, fraud-based and other manipulative conduct. We also can use this new broad provision against any deceptive conduct in connection with futures and swaps. These authorities bring us in line with some similar authorities the SEC has had for years, as well as the Federal Energy Regulatory Commission. These authorities expand our arsenal of enforcement tools and strengthen the Commission’s ability to effectively deal with threats to market integrity. We will use these tools to be a more effective cop on the beat to promote market integrity and protect market participants.

An eleventh decision was about compliance dates, phased compliance.

We as an agency were given by Congress one year to get everything done. We didn’t quite make that. We basically did it in three years – these 61 completed rules, orders and guidances. Congress also gave us another authority. They said nothing we put in place could be effective shorter than, I think it is 60 days after we have a completed rule. We chose to use the congressional authority to give more time. Sometimes we’d give a year. Sometimes we’d only give the two months. But we also sought public input on phased compliance to lower the costs of this change but also to make it work.

Phased compliance started with the anti-manipulation rules that went into effect in 2011. The next piece was that swap data repositories had to register with us. The big compliance date was one year ago, October 12 of 2012, when the whole reform went live, the definitions were in place. Dealers then registered in December. We started with 66. We have had 20 more -- 86 dealers have registered. Clearing was phased through this whole year. Real-time reporting was phased through this whole year. Now swap execution facilities are in place. We very much believe phased compliance smoothes this through because it is a monumental change.

Lastly, decision twelve, which was not directly in Dodd-Frank. A number of years ago, we decided to focus on reforms on the benchmarks that underlie the vast majority of the swaps market.

There are interest rate benchmarks called LIBOR, Euribor and others, if I can just call them the “ibors,” that are critical reference rates for our markets. In the U.S., LIBOR is the reference rate for 70 percent of the futures market and more than half of the swaps market. Thus, it is the most significant reference rate for the swaps market, which we’ve brought under reform.

A benchmark that is an underlying reference to a market, like these interest rate benchmarks, can only have market integrity if it is based on fact, not fiction. Unfortunately, what we have found with regard to LIBOR and Euribor is the underlying market, the so-called interbank market for unsecured lending between banks, has essentially dried up and no longer exists. Why is that? Well why does a bank really want to lend to another bank with an open line of credit, like a credit card loan? They only want to lend to each other like an auto loan or a mortgage. They want collateral to back that loan up. That market has shifted dramatically over the last ten or so years.

We’ve brought four big enforcement cases with regard to this, along with the Justice Department and international regulators. We’ve worked with international standard setters called International Organization of Securities Commissions to put in place a new paradigm for how benchmarks should be based on observable transactions – they need to be anchored in observable transactions. There needs to be a there, there. These benchmarks need better governance to ensure against conflicts of interest.

The Financial Stability Oversight Council, a reform out of Dodd-Frank, has spoken to need for benchmark reform and recommended that U.S. regulators work with foreign regulators and international bodies and market participants to really address two questions:

To promptly identify interest rate benchmarks anchored in observable transactions and supported by appropriate governance; and
To develop a plan to accomplish a transition.
It’s not going to be without challenges. These are the underlying benchmarks of $300 trillion plus in derivatives. But we have the ingenuity and the human spirit that we can make change. We cannot leave the system so frail that it has an underlying benchmark that is essentially fiction, not fact.

Those are the 12 big decisions that we’ve made along the way.

The government shutdown and resources are a challenge. Looking forward, our greatest challenge at the agency is not the shutdown. We’ll get through that. It is surreal having only 30 or so people at the agency, but we’ll get through the shutdown. We are a skeletal crew right now and at best we have a cursory oversight of the markets. Though we are dark, we have brought additional lightness to the markets with these new swap execution facilities and the cross-border guidance going into effect yesterday.

Looking past the shutdown, we’re only an agency of about 680 people. Far too small to oversee the markets that we’ve been tasked with from Congress. I think that’s a significant challenge for reform going forward.

I think the other significant challenge going forward is that as market participants look to maximize their revenues and customer support, as they should, they, at times, may look to arbitrage our rules versus other rules around the globe, or just arbitrage our rules against our rules, if they can.

I think that we’re in very firm setting on clearing, on data reporting, on real-time reporting, on some of the business conduct areas, reforms that all have been implemented. Right now, with this week’s implementation of cross-border and last week’s standing up of SEFs and, there’s bound to be challenges with regard to these reforms and we’ll get through them as they arise.

Lastly, just as Congress came together on new reforms in 2010, our regulations will need to evolve. They will need to evolve to stay abreast of market participants’ practice. We are hopeful that we got things right, but I think we always need to stay open that there may be things down the road that need to change.

Thank you. I’m pleased to take questions.

CFTC COMMISSIONER O'MALIA'S DISSENT FROM SETTLEMENT ORDER REGARDING JPMORGAN'S "LONDON WHALE" TRADES

FROM:  COMMODITY FUTURES TRADING COMMISSION 
Statement of Commissioner Scott D. O'Malia Regarding JPMorgan's Use of Manipulative Device
October 15, 2013

I respectfully dissent from the settlement Order with JPMorgan Chase Bank (JPMorgan) resolving charges against JPMorgan for use of a manipulative device with respect to the so called "London Whale" trades in violation of Section 6(c)(1)1 of the Commodity Exchange Act (CEA) and Regulation 180.1.2

As I explain in more detail below, I would prefer a twofold approach. First, the Commission should have taken more time to investigate whether the company is liable for a more serious violation, namely price manipulation. Second, since the "manipulative device" charge has not been tested before, I strongly believe that the courts must decide this case of first impression in order to set precedent and to guide both the Commission and market participants.

As a threshold issue, I question whether it is in the·public interest to settle with JPMorgan on a lesser "manipulative device" charge. I am concerned that in a rush to join in on a settlement brokered by other regulators, the Commission may be missing the opportunity to pursue allegations of greater wrongdoing—price manipulation.

In other words, the Commission's abbreviated investigation has failed to determine whether JPMorgan intentionally or recklessly manipulated the price of a particular type of credit default swap index known as "CDX."

Remarkably, the Order discusses the Commission's broad manipulation authority at length, but still does not conclude whether JPMorgan's aggressive trading strategy resulted in price manipulation. Failure to do so undermines the Commission's integrity and its enforcement powers in favor of taking shortcut's to achieve high-profile settlements.

I am also concerned that by accepting this settlement, the Commission may be missing the opportunity to establish a legal standard for a "manipulative device."

Because the settlement Order does not allege that JPMorgan engaged in manipulative or fraudulent conduct, I believe the Commission needs to do a better job of explaining why the company's aggressive trading strategy constitutes a "manipulative device."

Regrettably, neither the CEA nor Commission regulations define a "manipulative device." This lack of a legal standard makes it even more difficult to determine whether JPMorgan engaged in a reckless behavior that put the company at risk or whether such behavior constitutes a "manipulative device."

Although, some case law supports the Commission's conclusion that any device that is intentionally employed to distort a pricing relationship may be manipulative, the Commission has failed to produce data or conduct a more careful evaluation of the actual price to determine whether JPMorgan's conduct distorted the price of certain CDX indices.

This problem is compounded even more by the fact that the allegations in the settlement Order center on bilateral or over-the-counter trading. Given this trading environment, I am not clear how the Commission can distinguish between "real" and "distorted" prices if the trades were executed through bilateral negotiations.3

To reiterate, a better approach would have been for the Commission to fully utilize its expanded enforcement authority and conduct a more comprehensive investigation to establish whether there was price manipulation, rather than rush to settlement. As to the manipulative device charge, a better course would have been to have a federal court take a fresh look at this case to clarify the ambiguity in the Commission's new authority.

1 7 u.s.c. § 9 (2012)

2 17 C.F.R. § 180.1 (2012)

3 The Commission alluded to the issue of "real" versus "distorted" pricing in OTC trading when it promulgated Regulation 180.1. In the rule preamble, the Commission stated that "the failure to disclose ... information [about market conditions] prior to entering into a transaction, either in an anonymous market setting or in bilateral negotiations, will not. by itself, constitute a violation of final Rule 180.1" (emphasis added). 76 FR41398 at41402 (July 14, 2011).


Monday, October 21, 2013

CFTC COMMISSIONER CHILTON'S CONCURRENCE WITH ORDER REGARDING JPMORGAN MARKET MANIPULATION CASE

FROM:  COMMODITY FUTURES TRADING COMMISSION 
Concurrence of Commissioner Bart Chilton in the Matter of JPMorgan Chase, N.A. (JPMorgan)
October 16, 2013

I concur with this Order. For too long, our manipulation standard under the Commodity Exchange Act has been too high a hurdle.  Here's the proof: we've only successfully litigated one case in the Agency's 38-year history.

The authority being used in this instance—Section 6(c)(1) of the Act and our Rule 180.1—is the result of a new Dodd-Frank provision which provides the Commission with more flexibility to go after reckless manipulation in markets. It is a provision I supported and one championed by Senator Maria Cantwell.

I've continually sought appropriate penalties for violations of the Commodity Exchange Act.  I still seek a statutory change from our current puny penalty regime. That said, the $100 million JPMorgan sanction, along with the banks’ admission of deploying a recklessly aggressive trading strategy, seems an appropriate amount for the egregious manipulative conduct that took place on February 29, 2012.

Admitting to these findings of fact needs to be something part and parcel to these types of settlements.  All too often, a firm will neither admit nor deny any wrong doing. That needs to stop. I've been calling for the Agency to ensure that this occurs and commend the enforcement professional involved in this matter for their work.  I would not have supported the Order unless JPMorgan had admitted to such findings of fact.  Going to court on the matter would have been an acceptable avenue from my perspective.

Our Division of Enforcement has done an exemplary job on this case.  Doing so under normal circumstances is challenging, but concluding this matter during the government shutdown is extraordinary. I commend our Director of the Division of Enforcement, David Meister, and the team that has worked on this: Joan Manley and Paul Hayek, Saadeh Al-Jurf, Traci Rodriguez, Allison Shealy and Dan Ullman.

Finally, the day before the October 1st government shutdown, the CFTC returned a billion dollars to the Treasury.  These are monies collected from various civil monetary penalties and settlements. The following day, boom boom out went the lights at the CFTC.  Markets aren't being watched by the Agency, and only the most limited of functions are being carried out.  The matter today is a significant exception.

All it would take to keep the Agency open and on the job is for Congress to approve one single sentence to allow the CFTC use of the types of funds we returned. We have at least $100 million sitting there right now, unused, and with this settlement, there will be an additional $100 million.

This is a common sense provision that I, once again, respectfully urge Congress to immediately consider.

SETTLEMENT CHARGES SETTLED IN "LONDON WHALE" SWAPS TRADES CASE

FROM:  U.S. COMMODITY FUTURES TRADING COMMISSION 
CFTC Files and Settles Charges Against JPMorgan Chase Bank, N.A., for Violating Prohibition on Manipulative Conduct In Connection with “London Whale” Swaps Trades

JPMorgan Admits to Reckless Conduct in First Case Charging Violation of Dodd Frank’s Prohibition Against Manipulative Conduct and is Ordered to Pay a $100 Million Civil Monetary Penalty

Washington, DC – The U.S. Commodity Futures Trading Commission (CFTC) today issued an Order against JPMorgan Chase Bank, N.A. (JPMorgan or Bank), bringing and settling charges for employing a manipulative device in connection with the Bank’s trading of certain credit default swaps (CDS), in violation of the new Dodd-Frank prohibition against manipulative conduct. As set forth in the CFTC’s Order, by selling a staggering volume of these swaps in a concentrated period, the Bank, acting through its traders, recklessly disregarded the fundamental precept on which market participants rely, that prices are established based on legitimate forces of supply and demand. As a result, after a thorough 17-month investigation, the Commission has found the Bank liable for violating Section 6(c)(1) of the Commodity Exchange Act (the “Act”), 7 U.S.C. §9 (2012), as amended by the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank”), and Commission Regulation 180.1, 17 C.F.R. §180.1 (2012).

JPMorgan, which admits the specified factual findings in the Order including that its traders acted recklessly, is directed, among other things, to pay a $100 million civil monetary penalty.

“In Dodd-Frank, Congress provided a powerful new tool enabling the CFTC for the first time to prohibit reckless manipulative conduct,” said David Meister, the CFTC’s Director of Enforcement. “As this case demonstrates, the Commission is now better armed than ever to protect the market from traders, like those here, who try to ‘defend’ their position by dumping a gargantuan, record-setting, volume of swaps virtually all at once, recklessly ignoring the obvious dangers to legitimate pricing forces.”

Highlights of the CFTC Order

The CDS market comprises globally traded credit derivatives used to speculate on and hedge against credit defaults. Trillions of dollars (notional) of CDS instruments and baskets of CDS called credit default indices, some known as CDX, are used to transfer risk of defaults by companies in the United States and around the world. As such, the CDS market is an important aspect of the global economy.

From approximately 2007 through 2011, JPMorgan’s Chief Investment Office (“CIO”), operating through a trading desk in the Bank’s London branch, traded and held various credit default indices, including CDX, in a Synthetic Credit Portfolio (“SCP”). Each day the SCP traders marked their positions to market, assigning a value to the positions using market prices and other factors. That value was used to calculate the CIO’s profits and losses. At the end of each month an “independent” group at JPMorgan tested the validity of the traders’ month-end marks.

As of the end of 2011, the portfolio held $51 billion net notional of these credit instruments, the outsized amount spurring press reports referring to one CIO trader as the “London Whale.” Although previously quite profitable, the portfolio had taken a serious turn for the worse at least by late January 2012, with year-to-date mark-to-market losses of $100 million. In February 2012, daily losses were large and growing.

The violation charged in the CFTC’s Order concerns the Bank’s trading of one particular credit default index -- “CDX NA.IG9 10 year index” (“IG9 10Y”). As the end of February 2012 approached, the SCP’s net short position in the IG9 10Y grew to a mammoth $65 billion, which meant that relatively small favorable or adverse movements in market prices produced significant mark-to-market profits or losses for the CIO. Because the SCP was short IG9 10Y, the mark-to-market value of the position increased as the market price decreased.

On February 29, just ahead of the month-end testing of their marks, the traders believed the portfolio’s situation was grave. That day, desperate to avoid further losses, the traders developed a resolve, as they put it, to “defend the position.” Recognizing that the sheer size of their position in IG9 10Y had the potential to affect or influence the market, the traders recklessly sold massive amounts of protection on the IG9 10Y. They were short protection and they sold more protection.

Specifically, with the portfolio standing to benefit as the IG9 10Y market price dropped, on February 29 the CIO sold on net more than $7 billion of IG9 10Y, a staggering volume -- far and away the largest amount the CIO ever traded in one day -- $4.6 billion of which was sold during a three-hour period as the day drew to a close.

The Order provides comparative measures that demonstrate just how large and concentrated these February 29 sales of IG9 10Y were. For example, these sales alone accounted for more than 90% of the day’s net volume traded by the entire market, were 15% of the month’s net volume traded by the entire market, and were nearly 11 times the SCP’s average daily volume in February. The February 29 trading followed more than $3 billion in sales of the IG9 10Y during the prior two days. The net volume the CIO sold February 27-29 amounted to roughly one-third of the total volume traded for the entire month of February by all other market participants.

During this same period at month-end, the IG9 10Y market price dropped substantially. While the CIO was selling at generally declining prices, the value of the short position that the CIO held in the SCP benefited on a mark-to-market basis from the declining market prices.

As set forth in the Order, the trading strategy to “defend the position” -- selling $7.17 billion of the IG9 10Y on February 29 in a concentrated period -- constituted a manipulative device employed by the traders in reckless disregard of the possible consequences of their conduct, including obvious dangers to legitimate market forces. That conduct therefore violated section 6(c)(1) of the Act and Rule 180.1.

In addition to paying a $100 million penalty, JPMorgan must continue to implement written enhancements to its supervision and control system in connection with swaps trading activity, including trading and risk management controls reasonably designed to prevent and promptly detect mis-marking of its books, enhanced communications among risk, control and supervisory functions, and the development of additional surveillance tools to assist supervisors with monitoring trading activity in connection with swaps.

In addition to finding the violation, the Order describes aspects of the CFTC’s new business conduct rules applicable to swap dealers. JPMorgan registered with the Commission as a swap dealer as of December 31, 2012, and at that time became subject to the Commission’s new swap dealer regime, including rules that impose supervision and control obligations. Although these rules did not apply to the Bank at the time of the events in question, the Order explains how some of these new rules would have covered the matters set forth in the Order, and concludes that had the regulations been in place, much of the offending conduct at issue (and the significant losses it caused) may well have been detected and remedied internally much more quickly, thereby potentially reducing losses.

The CFTC acknowledges the valuable assistance of the United Kingdom’s Financial Conduct Authority, as well as that of the U.S. Securities and Exchange Commission and the United States Attorney’s Office for the Southern District of New York.

The CFTC also acknowledges JPMorgan’s cooperation with the Division of Enforcement’s investigation.

CFTC Division of Enforcement staff responsible for this action are Saadeh Al-Jurf, Allison Baker Shealy, Traci Rodriguez, Daniel Ullman, Joan Manley, and Paul G. Hayeck.

SEC CHARGES N.J.-BASED FIRM AND OWNER WITH MISLEADING INVESTORS IN A CDO

FROM:  THE U.S. SECURITIES AND EXCHANGE COMMISSION

The Securities and Exchange Commission today announced charges against a Morristown, N.J.-based investment advisory firm and its owner for misleading investors in a collateralized debt obligation (CDO) and breaching their fiduciary duties.

The SEC’s Enforcement Division alleges that Harding Advisory LLC and Wing F. Chau compromised their independent judgment as collateral manager to a CDO named Octans I CDO Ltd. in order to accommodate trades requested by a third-party hedge fund firm whose interests were not necessarily aligned with the debt investors.  Harding agreed to give the hedge fund firm rights in the process of selecting and acquiring a portfolio of subprime mortgage-backed assets to serve as collateral for debt instruments issued to investors in the CDO.  These rights, which were not disclosed to investors, included the right to veto Harding’s proposed selections during the “warehouse” phase that preceded issuance of the CDO’s debt instruments.  The influence of the hedge fund firm led Harding to select assets that its own credit analysts disfavored.

“A collateral manager’s independent selection of assets is an important selling point to potential CDO investors,” said George S. Canellos, co-director of the SEC’s Division of Enforcement. “Investors had a right to know that Harding and Chau had chosen to accommodate the interests of others and abandon their own obligations to act in the best interests of the CDO they advised.”

According to the SEC’s order instituting proceedings, the hedge fund firm was Magnetar Capital LLC, which had invested in the equity of the CDO.  Merrill Lynch, Pierce, Fenner & Smith Inc. structured and marketed the CDO, which closed on Sept. 26, 2006.  Merrill Lynch, Magnetar, and Harding agreed in the spring of 2006 that Harding would serve as collateral manager for the CDO.  Chau understood that Magnetar was interested in investing as the equity buyer in CDO transactions, and that Magnetar’s strategy included “hedging” its equity positions in CDOs by betting against the debt issued by the CDOs.  Because Magnetar stood to profit if the CDOs failed to perform, Chau knew that Magnetar’s interests were not necessarily aligned with investors in the debt tranches of Octans I, whose investment depended solely on the CDO performing well.

The SEC’s Enforcement Division alleges that while assembling the collateral for Octans I, Chau and Harding allowed Magnetar an undisclosed influence over the selection process.  Harding’s own credit analysis of many of the selected assets was disregarded, and Magnetar’s influence over the portfolio was omitted from materials used to solicit investors for the CDO.  Chau and Harding misrepresented the standard of care that Harding would use in acquiring collateral for Octans I.

The SEC’s Enforcement Division further alleges that Harding and Chau breached their advisory obligations to several other CDOs for which they served as investment managers.  As a favor to Merrill Lynch and Magnetar, Harding and Chau purchased bonds for those CDOs that Chau and Harding disfavored.  In accepting the bonds, Chau wrote in an e-mail to the head of CDO syndication at Merrill Lynch, “I never forget my true friends.”

The SEC’s Division of Enforcement alleges that by engaging in the conduct described in the SEC’s order, Harding and Chau violated Section 17(a) of the Securities Act of 1933 and Section 206 of the Investment Advisers Act of 1940.  Chau also is charged with aiding and abetting and causing Harding’s violations. The proceedings before an administrative law judge will determine what relief against Harding and Chau is in the public interest.

The SEC’s investigation, which is continuing, has been conducted by staff in the Complex Financial Instruments Unit and the New York Regional Office, including Steven Rawlings, Brenda Chang, Elisabeth Goot, Sharon Bryant, Kapil Agrawal, Howard Fischer, Daniel Walfish, and Douglas Smith.  The case was supervised by Reid Muoio, and the litigation will be led by Mr. Fischer, Mr. Walfish, Ms. Goot, and Ms. Chang.

Sunday, October 20, 2013

SEC CHAIR MARY JO WHITE'S REMARKS AT MANAGED FUNDS ASSOCIATION OUTLOOK 2013 CONFERENCE

FROM:  U.S. SECURITIES AND EXCHANGE COMMISSION 
Hedge Funds – A New Era of Transparency and Openness
 Chair Mary Jo White
Managed Funds Association Outlook 2013 Conference, New York, New York

Oct. 18, 2013

Thank you very much Richard for that kind introduction. I am very happy to be here today and particularly pleased that I could join you at this conference at such an important time in your industry.

The Managed Funds Association has long been an important and constructive voice representing the private fund industry. And that voice is especially relevant today.

I. The Era of Transparency and Openness
Private funds, including hedge funds, play a critical role in capital formation, and are influential participants in the capital markets. And, perhaps more than ever before, the hedge fund industry as a whole is experiencing dynamic change — moving from what some would say was a secretive industry, to a widely-recognized and influential group of investment managers.

Today, I want to focus on this change within your industry, as well as on what the SEC must do as the primary regulator in this space.

There is little doubt that hedge funds have entered a new era of transparency and public openness – a transformation that I believe will benefit investors, the public and regulators. And, one that I believe will ultimately and significantly redound to your benefit as well.

It is a substantial and fairly sudden change brought on as a result of two recent and significant pieces of legislation: the Dodd-Frank Act[1] and the JOBS Act.[2] Although both are designed to promote additional transparency, they do so from different, but complementary perspectives.

The Dodd-Frank Act
The Dodd-Frank Act, as you know, required most advisers to hedge funds and other private funds to register with the SEC, resulting in public reporting of basic information regarding business operations and conflicts of interest.[3] Demonstrating leadership and a commitment to appropriate and effective regulation, the MFA supported this change.[4]

In addition, the Dodd-Frank Act directed the SEC to collect information, on a confidential basis, from private fund advisers regarding the risk-profiles of their funds.[5] And, again, the MFA weighed in constructively, taking the view that confidential reporting to a functional regulator could be beneficial to reducing potential systemic risk[6] – a view that I share.

The JOBS Act
The JOBS Act, meanwhile, facilitates greater transparency and openness in a different way. It directed the SEC to lift the decades-old ban on general solicitation that applied when companies or funds make private securities offerings under Rule 506 of Regulation D – a rule that private funds used to raise over $700 billion[7] in 2012.

As a result, as of September 23, 2013, hedge fund managers feel they have a new freedom to communicate with the public, to advertise, to talk to reporters, to speak at conferences and, most importantly, communicate with investors openly and frankly. And, you can do these things without the fear of securities regulators knocking on your door, or your outside counsel screaming at you.

For some of you, this rule change may not alter your practices significantly. But for others, the new rule will allow communication and engagement with investors in a way not permitted by the old rule.

Taken together, these are significant changes – creating an opportunity for a new era of openness, public engagement and the availability of information about your industry.

As leaders of the private fund community, you are in a unique position to guide your industry through this critical time. And, we – at the SEC – are committed to working alongside you to ensure that this transition is smooth – keeping in mind that your, and our, ultimate focus must be the interests of investors.

I will focus for a few minutes this morning on these changes within your industry and the responsibilities that flow from them. There are new and significant responsibilities that you have, but there are also important responsibilities that we as regulators shoulder in this new era.

I believe it is critical that we work together and each do our part to ensure that this new transparency and openness have a positive impact on capital formation and investor confidence.

Mandated Registration
As recently as 2010, regulators could only see a portion of the financial landscape comprised of hedge fund and other private fund advisers. That is because our view of the market was limited to those advisers who voluntarily registered with the Commission – or were required to do so because, for example, they also managed a mutual fund.

We knew that there was a gap in our knowledge. But, we did not know how many hedge fund managers existed and we did not know who they were -- we could not tell how big this slice of the market really was.

Commentators thought that many advisers would volunteer to register in the belief that an SEC registration would bestow greater credibility in the eyes of investors. And about 2,500 hedge fund and other private fund advisers did step forward. But, we did not know who else was out there.

In the wake of the Dodd-Frank Act, all of that changed. Hedge fund and other private fund advisers, for the first time, were required to become more visible. And, soon we saw over 1,500 new hedge fund and other private fund advisers, bringing the total number of registered advisers to private funds to just over 4,000. Until then, we did not know that we had not accounted for one-third of the industry. Today, as we now know, approximately 40% of the investment advisers, who are registered with the SEC, manage one or more hedge funds or other private funds.[8]

We do not take this new registration development, and what it has revealed, lightly. And we know that it was certainly an important milestone for your industry. It was significant both because of the historically private nature of your industry and because a requirement to register means much more to you than just checking a box on a form and letting us know that you exist.

Registration, as you know very well, requires, as an initial matter, making information about your operations and your funds public.

One immediate benefit of this requirement to your industry should be that transparency will enable you to shed the secretive, “shadowy” reputation that some would say has unfairly surrounded you – a myth that did not serve anyone well, least of all you.

Clearly, the increased transparency and openness creates benefits for you, your investors and the securities markets generally. But it carries with it new responsibilities and obligations as well, for both you as an industry and for us as your regulator. For you, it principally means sharing complete and accurate information with investors and regulators, whether through your registration forms, confidential regulatory reports, solicitation materials, or examination visits. For us, it principally means making sure our rules, examination and enforcement program are accurately tuned to a changing world and foster, not impede, the positive aspects of this growing transparency.

We want to work with you to make sure you are able to live up to your new regulatory responsibilities, but we also hope that you recognize their value. And we need your help when we craft rule proposals that affect your industry or when you find that existing rules are not appropriately calibrated for what you do.

II. The Responsibility of Transparency and Openness
Registration and Disclosure
The most basic regulatory responsibility is providing specific information to your investors and the public – information about the funds you manage, your operations and conflicts of interest. For some of you, providing this information when you registered with the SEC may have been the “first step” into this new era of transparency and openness. But it is familiar and common territory for many other entities across the securities industry.

The registration information you file with us is posted on the SEC’s website, making access for existing and prospective investors easy. In providing this information, you are helping investors understand your business and investment approach – and also helping to inform us by providing data through which we can assess a firm’s business operations, conflicts of interest and leadership.

Our knowledge of the markets and understanding of your businesses is also enhanced when you provide us with non-public data on your funds’ risk profiles, which is required by new Form PF mandated by the Dodd-Frank Act.[9] Form PF provides information on the types of assets you are holding to help to inform government regulators tasked with monitoring systemic risk. Using this information, regulators can then assess trends over time and identify risks as they are emerging, rather than reacting to them after they unfold. As part of this process, it is our responsibility to be sensitive to and safeguard the confidential nature of the data you provide.[10] We take that obligation very seriously.

This era of hedge fund transparency is also new for us. We need to continuously ensure that we – as regulators – are asking for the right information, in the most appropriate way; that we are training our staff to properly understand your business; and that, where necessary, we are hiring the experts who have been in your shoes at one time. We welcome your input on how we might further improve our disclosure and data gathering efforts.

* * *

In addition, the Commission recently proposed a rule[11] that would require you to provide information about offerings you and others conduct under Rule 506 of Regulation D, including those that use general solicitation and advertising.

This proposal is designed, in part, to provide more transparency to enable us to better monitor the private placement market. It would enable us to learn more about the size of the market, those who conduct offerings, and the characteristics of those who are unsuccessful in completing an offering. It also would provide us access to the solicitation materials that are being used and better assure that investors are getting some baseline level of information about risks.

It is part of our effort to ensure that this new market, which private funds dominate,[12] is conducted in a manner that furthers both new capital formation and investors’ interests. We are sincerely interested in your thoughts and constructive input on these topics.

To date, we have received more than 450 comment letters on the proposed amendments,[13] including one we recently received from the MFA. And, recently, we extended the time for the public to comment on the proposal.

This is an important proposal, and there are a lot of different views about it, so it is important to have an opportunity to consider these views. Issues raised in the comment process contribute meaningfully to all of our rulemakings.

But, for investors’ sake and the sake of the new marketplace, we need to move expeditiously toward adoption, following appropriate consideration of the comments. And we must get it right if we are going to make this new era of transparency and openness workable.

Contemporaneously with lifting the ban on general solicitation, the SEC staff has undertaken an interdivisional effort designed to monitor how the ability to advertise and “generally solicit” is actually occurring – how companies and hedge funds are taking advantage of the new rule. It includes assessing the impact of general solicitation on the market for private securities and –importantly –on identifying fraud if it is occurring. If it is, we can seek to stop those in their tracks, who would inappropriately take advantage of this new more open environment.

In a similar vein, because of the SEC’s new “bad actor” rule, which was adopted at the same time the ban on general solicitation was lifted, those who commit securities law violations after the effective date of the new rule (which was September 23, 2013) will be prohibited from participating in this private offering process going forward. There also will be disclosure of past “bad actors” involved in private offerings, to the extent they exist.

We need to keep a very close eye on core investor protection issues as the new “public-oriented” market for private securities initially develops. Our goal is not just to react to investor harm, but also to prevent it.

I think we are all aligned in this effort. We all want this new marketplace to thrive – efficiently, but honestly – for the benefit of entrepreneurs and investors alike.

Examinations
Of course, the new era of transparency and openness includes more than just registering with the SEC, filing information publicly and communicating more freely with the public.

Registering with the SEC also requires compliance with business conduct rules. These rules are there to help protect investors and safeguard our markets, but they are also rules that should strengthen your operations.

Transparency also means being subject to an occasional visit by a team of our professional compliance examiners – who will review your records and sit with you to evaluate whether your firm is being run in compliance with these business conduct rules and other requirements.

This may not be the most welcome aspect of the new age of transparency for hedge fund advisers. But it is a very important component of our regulatory work because well-conceived rules are of little value if they are not being followed. So, our examinations are designed to evaluate compliance, but also to assist you as you work to achieve your compliance objectives.

Since registering with the SEC, some of you may already have received your first visit from an SEC examination team. And, hopefully, you found them to be informed, professional and constructive. Certainly, that is something you deserve and should expect. And something we continuously seek to foster in our teams.

Now, I know questions have been raised about whether inclusion of private fund advisers in our examination program makes sense, given the often sophisticated nature of hedge fund investors. The question is legitimate and, as the head of a regulatory agency, I need to continuously assess whether our resources are being deployed in the most productive, cost-effective manner.

That being said, the SEC has a mission of investor protection that runs across the investor landscape. It applies to all investors, and all investors in the U.S. markets deserve to know that there is a regulator on the block, looking around corners and concerned about their interests.

We should also recognize that, while many hedge fund investors are considered to be “sophisticated” or “institutional,” those terms apply to a wide swath of investor types. And the investment performance of institutional investors can affect the lives of people on the street. Institutional investors, for example, include pensions funding workers’ benefits, college endowments and charities. These “sophisticated investors” can and do have a real impact on main street investors.

So, yes, our examiners are in your space. We are, however, trying to be “smart” about how we examine.

That is why we launched an initiative to conduct focused exams of newly registered advisers. These examinations, known as “presence exams,” establish our regulatory presence with registered private fund advisers in a very tangible way. Our examiners are on-the-ground, in-person, discussing issues of importance to hedge fund advisers and their investors.

These presence exams, which are shorter in duration and more streamlined than typical examinations, are designed both to engage with newly-registered hedge fund and other private fund advisers and to permit our examination team to examine a higher percentage of new registrants.

The goal of the examinations is not to play “gotcha.” It is instead to make sure newly-registered private fund advisers are aware of their obligations under the SEC’s rules. And it is to promote investor-oriented business practices through, among other things, the sharing of best practices.

To foster a two-way street of transparency, we are making known the areas that are of interest to us. For instance, in a letter we sent to senior leadership of newly-registered private fund advisers, we explained that the staff is pursuing five focus areas for the presence exams:

marketing;
portfolio management;
conflicts of interest;
safety of client assets; and
valuation.[14]
We will work cooperatively with you to address any irregularities. But, should we find fraud, we will pursue it, just as you, your investors, and your fellow market participants would expect us to do.

III. The Regulator’s Responsibilities
Making Sure our Rules Work
Just as you have many new responsibilities, we too have additional obligations.

For instance, at the SEC, we need to fully understand your business and take into account the private fund business model and the needs of private fund investors. And, we have been striving to do that.

In August, for example, the SEC staff put out guidance[15] on how our custody rule[16] should apply to private stock certificates. That rule seeks to protect investors by imposing certain requirements on those private funds that hold stock certificates that represent the underlying ownership interests of the fund.

Through our engagement with the industry, however, the staff recognized that applying the custody rule in the private fund, and particularly, the private equity fund context may not work as intended.

In particular, the staff noted that existing mechanisms, such as the financial statement audit, provided appropriate investor protections and maintenance of stock certificates with a separate custodian often resulted in additional costs to investors and firms, with little added benefit. So, our staff advised that maintenance of private company, non-transferable stock certificates with a custodian is not necessary if the private fund is audited as required by the custody rule.[17]

Although I understand that we may need to take further steps, the staff guidance on the custody rule exemplifies our efforts to tailor the application of SEC rules to hedge funds and other private funds, while at the same time promoting meaningful investor protection.

As with the custody rule, we are also regularly considering our rules related to advertising – an area that is front and center in light of the JOBS Act and the new freedom that hedge fund advisers have to advertise. Even before the JOBS Act, hedge fund advisers had questioned SEC rules prohibiting testimonials and the meaning of the ban on “past specific recommendations.”[18]

And, I can imagine we will receive additional questions regarding the effectiveness of our advertising rules as hedge funds begin to “generally solicit” under the new rules implementing the JOBS Act.

From my perspective, I want to know if we are targeting the right areas, and if our rules, written decades ago, are still relevant and effective today.

Should, for example, the SEC or some other organization attempt to mandate standardized performance disclosure for hedge funds consistent with a recommendation from our Investor Advisory Committee?[19]

These are just some of the questions we are asking at the SEC and, for our rules to work right, we need your input.

A Focused Enforcement Program
Finally, because of the greater transparency, the SEC will have a clearer picture of the players and practices in your industry – including those who engage in fraud or sharp practices. This clearer picture gives us a window into the whole industry and enables us to craft an enforcement program that is more focused and directed.

Recently, the SEC has been quite active in bringing enforcement cases involving private funds. These cases have involved charges related to: insider trading; false advertising and performance claims; overvaluing assets in order to charge excessive fees; benefitting favored investors at the expense of other investors; and using private fund assets for the personal benefit of the fund’s adviser.

The existence of bad actors and outright fraudsters in the private fund industry hurts investors and obviously damages the industry’s reputation. None of us should stand for it.

It is essential, on our part, that the SEC have strong and vigilant examination and enforcement programs to root out these bad actors in order to build investor confidence in the fairness and integrity of our markets. It is important to you as an industry that we succeed in these efforts. And we welcome your support.

IV. Conclusion
Going forward in this new era of transparency and regulatory oversight, we want to work with you because we both shoulder new and important responsibilities. We know you will take these new requirements seriously and we do too.

We want to hear about the tools we use to gather information. And we want to hear about our efforts to stay current on your industry. We welcome your input on our regulatory effectiveness.

We also want to hear how our rules, examination and enforcement focus can be better targeted to the needs of private fund investors.

As hedge fund leaders, you have close relationships with your investors. You communicate with them regularly. You understand their needs. We need for you to share their perspectives with us.

My bottom line: we look forward to continuing to work with you constructively in this new era of transparency. If we do, our markets will be strengthened, investors will be protected, and your businesses can operate from a more transparent and stronger platform.

Thank you.

# # #


[1] Pub. L. No. 111-203, 124 Stat. 1376 (2010).

[2] Pub. L. No. 112-106, 126 Stat. 306 (2012).

[3] Section 403 of the Dodd-Frank Act (codified at Section 203(b) of the Investment Advisers Act of 1940, as amended).

[4] Testimony of Richard H. Baker, President and Chief Executive Officer, Managed Funds Association, for the Hearing on Capital Markets Regulatory Reform: Strengthening Investor Protection, Enhancing Oversight of Private Pools of Capital, and Creating a National Insurance Office, before the Committee on Financial Services, U.S. House of Representatives (October 6, 2009)., available at http://www.managedfunds.org/downloads/MFA%20testimony%20October%206%20final.pdf .

[5] Section 404 of the Dodd-Frank Act (codified at Section 204(b) of the Investment Advisers Act of 1940, as amended).

[6] Testimony of Richard H. Baker, President and Chief Executive Officer, Managed Funds Association, for the Hearing on Systemic Regulation, Prudential Matters, Resolution Authority and Securitization, before the Committee on Financial Services, U.S. House of Representatives (October 29, 2009), available at http://www.managedfunds.org/downloads/MFA%20Written%20Testimony.pdf .

[7] Vladimir Ivanov and Scott Bauguess, Capital Raising in the U.S.: An Analysis of Unregistered Offerings Using the Regulation D Exemption, 2009-2012 (July 2013), available at: http://www.sec.gov/divisions/riskfin/whitepapers/dera-unregistered-offerings-reg-d.pdf, Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings, Advisers Act Release No. 3624 (Jul. 10, 2013) [78 FR 44771 (Jul. 24, 2013)], available at http://www.sec.gov/rules/final/2013/33-9415.pdf.

[8] “ Dodd-Frank Act Changes to Investment Adviser Registration Requirements,” available at http://www.sec.gov/divisions/investment/imissues/df-iaregistration.pdf.

[9] Reporting by Investment Advisers to Private Funds and Certain Commodity Pool Operators and Commodity Trading Advisors on Form PF, Investment Advisers Act Release No. 3308 (October 31, 2011), 76 FR 71128 (November 16, 2011), available at http://www.sec.gov/rules/final/2011/ia-3308.pdf.

[10] Reporting by Investment Advisers to Private Funds and Certain Commodity Pool Operators and Commodity Trading Advisors on Form PF, Investment Advisers Act Release No. 3308, at Section II.D, “Confidentiality of Form PF Data” (October 31, 2011), 76 FR 71128 (November 16, 2011), available at http://www.sec.gov/rules/final/2011/ia-3308.pdf.

[11] Amendments to Regulation D, Form D and Rule 156, Securities Act Release No. 9416 (Jul. 10, 2013) [78 FR 44806 (Jul. 24, 2013)], available at http://www.sec.gov/rules/proposed/2013/33-9416.pdf.

[12] See Vladimir Ivanov and Scott Bauguess, Capital Raising in the U.S.: An Analysis of Unregistered Offerings Using the Regulation D Exemption, 2009-2012 (July 2013), available at: http://www.sec.gov/divisions/riskfin/whitepapers/dera-unregistered-offerings-reg-d.pdf, Eliminating the Prohibition Against General Solicitation and General Advertising in Rule 506 and Rule 144A Offerings, Advisers Act Release No. 3624 (Jul. 10, 2013) [78 FR 44771 (Jul. 24, 2013)], available at http://www.sec.gov/rules/final/2013/33-9415.pdf.

[13] Comments are available at “Comments on Proposed Rule: Amendments to Regulation D, Form D and Rule 156 under the Securities Act,” http://www.sec.gov/comments/s7-06-13/s70613.shtml.

[14] See “Letter Regarding Presence Examinations,” available at http://www.sec.gov/about/offices/ocie/letter-presence-exams.pdf.

[15] “IM Guidance Update: Custody of Privately Offered Securities,” (August 2013), available at http://www.sec.gov/divisions/investment/guidance/im-guidance-2013-04.pdf.

[16] 17 CFR 275.206(4)-2.

[17] “IM Guidance Update: Custody of Privately Offered Securities,” (August 2013), available at http://www.sec.gov/divisions/investment/guidance/im-guidance-2013-04.pdf.

[18] 17 CFR 275.206(4)-1(a)(1) and (2).

[19] Recommendations of the Investor Advisory Committee Regarding SEC Rulemaking to Lift the Ban on General Solicitation and Advertising in Rule 506 Offerings: Efficiently Balancing Investor Protection, Capital Formation and Market Integrity (January 2013), available at http://www.sec.gov/spotlight/investor-advisory-committee-2012/iac-general-solicitation-advertising-recommendations.pdf.