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Futures Broker Due Diligence Notes post PFG
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Futures Broker Due Diligence Notes post PFG

  #91 (permalink)
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@FCMReform

Many thanks for continuing to update this thread. From your posts I'm able to find out exactly what is going on in this thread in a few seconds than spending 10 minutes on google trying to find the same information.

Cheers
DJ

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CFTC Announces Reform Proposals

Chairman Gary Gensler put out a press release today announcing a series of reforms designed to afford customers greater protections in the futures industry. It does not appear retail forex has been included in these reforms but we'll learn more in the days ahead. Here are the highlights:



Statement by Chairman Gary Gensler of Support: Enhancements for the Protection of Customers and Customer Funds




Quoting 

This customer protection proposal incorporates these NFA rules into the Commission’s regulations so that the CFTC can directly enforce these important rules. Under this proposal, FCMs would be required to:

• Hold sufficient funds in Part 30 secured accounts (funds held for U.S. foreign futures and options customers trading on foreign contract markets) to meet their total obligations to customers trading on foreign markets computed under the net liquidating equity method. FCMs would no longer be allowed to use the alternative method, which had allowed them to hold a lower amount of funds representing the margin on their foreign futures;

• Maintain written policies and procedures governing the maintenance of excess funds in customer segregated and Part 30 secured accounts. Withdrawals of 25 percent or more would necessitate pre-approval in writing by senior management and must be reported to the designated SRO and the CFTC; and

• Make additional reports available to the SRO and the CFTC, including daily computations of segregated and Part 30 secured amounts.

Beyond the NFA rules, additional reforms in this proposal benefited from the CFTC’s broad outreach and consultation with the SROs and market participants, as well as substantial feedback from CFTC Commissioners. They include:

• First, bringing the regulators’ view of customer accounts into the 21st century by giving the SROs and the CFTC direct electronic access to FCMs’ bank and custodial accounts for customer funds, without asking the FCMs’ permission. Further, acknowledgement letters and confirmation letters must come directly to regulators from banks and custodians.

• Second, increasing disclosures to customers regarding the risks associated with futures trading and using FCMs to invest their funds. Futures customers, if they wish, should have access to information about how their assets are held, similar to that which is available to mutual fund and securities customers. FCMs would be required to provide current and potential customers with specific information about the FCM’s risks.

• Third, enhancing controls at FCMs regarding how customer accounts are handled, including policies and procedures on supervision and risk management of customer funds.

• Fourth, setting standards for the SROs’ examinations and the annual certified financial statement audits, including raising minimum standards for independent public accountants who audit FCMs.

• Fifth, requiring FCMs to ensure they back up segregated customer accounts with funds to cover potential margin deficits.

• Sixth, implementing a more effective early warning system for the Commission and the SROs that alerts them to certain problems, including a) when an FCM’s funds are insufficient to meet the targeted residual interest in customer accounts b) when there is a material adverse impact to the FCM’s creditworthiness and c) when there is a material change to the FCM’s clearing or financial arrangements.

• And seventh, instituting a liquidity requirement for FCMs, in addition to the existing capital requirement, to better detect FCMs that have become distressed and may put customer funds at risk.

Prior to this proposal, the Commission already made some important improvements to protections for customer funds. They include:

• The completed amendments to rule 1.25 regarding the investment of funds that bring customers back to protections they had prior to exemptions the Commission granted between 2000 and 2005. Importantly, this prevents use of customer funds for in-house lending through repurchase agreements;

• Clearinghouses will have to collect margin on a gross basis and FCMs will no longer be able to offset one customer’s collateral against another and then send only the net to the clearinghouse;

• The so-called “LSOC rule” (legal segregation with operational comingling) for swaps ensures customer money is protected individually all the way to the clearinghouse; and

• The Commission included customer protection enhancements in the final rule for designated contract markets. These provisions codify into rules staff guidance on minimum requirements for SROs regarding their financial surveillance of FCMs.


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djkiwi View Post
@FCMReform

Many thanks for continuing to update this thread. From your posts I'm able to find out exactly what is going on in this thread in a few seconds than spending 10 minutes on google trying to find the same information.

Cheers
DJ

Thanks DJ

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Due Diligence Red Flags

The CFTC is expected to formally submit their reform proposals to the federal register, which will once again give customers a chance to make comments. I’ll post a link once it is available. In the meantime, Futures Magazine has published an interesting article on conducting your due diligence:
Spotting broker red flags

The article partly highlights the importance of good auditing and the benefits to traders of being able to look at the many reports that publicly traded companies have to file.


Quoting 
A red flag that has come up in several cases is inadequate auditing. A large futures broker or investment firm should have, if not one of the big four, an institutional level auditor. The Sam Israel Bayou Hedge Fund, Bernie Madoff and PFG scandals all used sole proprietor or inadequate auditors. While the big guys have messed up as well, a large firm managing hundreds of millions of dollars shouldn’t be hiring someone working out of his (or her) garage. If they do, it is a blazing red flag.


Quoting 
Publicly traded companies like MF Global have numerous reports they must file with the Securities and Exchange Commission (SEC), and, as a registered FCM, MF Global had to submit monthly segregated account reports to the CFTC. These reports can reveal a lot of information, though many of them, especially SEC filings, can be dense and hard to interpret if you don’t know what to look for. Find someone who does.

Traders should not have to do go searching for expensive accountants to conduct due diligence. They should be able to easily review a firm’s financial statements at a public website so that they can determine how healthy a firm actually is. This is a far better way to conduct due diligence than the current system which merely relies on the public statements of individuals like Russ Wassendorf. Marketing promises are no substitute for hard data. There is still time to get the CFTC to adopt such safeguards. Email secretary@cftc.gov to make your own recommendations regarding customer insurance, these proposals, or any others.

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FCMReform View Post
Chairman Gary Gensler put out a press release today announcing a series of reforms designed to afford customers greater protections in the futures industry. It does not appear retail forex has been included in these reforms but we'll learn more in the days ahead. Here are the highlights:

Statement by Chairman Gary Gensler of Support: Enhancements for the Protection of Customers and Customer Funds

@FCMReform

Correct me if I'm wrong but I'm not seeing any protection from regulators regarding the equally risky issue of hypothecation and the zero protection with UK subsidiaries? Any thoughts on this?

Under the U.S. Federal Reserve Board's Regulation T and SEC Rule 15c3-3, a prime broker may re-hypothecate assets to the value of 140% of the client's liability to the prime broker. For example, assume a customer has deposited $500 in securities and has a debt deficit of $200, resulting in net equity of $300. The broker-dealer can re-hypothecate up to $280 (140 per cent. x $200) of these assets.

Cheers
DJ

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NFA Debuts New Basic Report

The NFA has debuted its new financial reporting section on the BASIC search part of their website:

NFA provides public online access to FCM financial information


Quoting 

Using the new BASIC system, customers will be able to view
  • An FCM Capital report, showing the most recent month’s data on adjusted net capital, required net capitals and excess net capital
  • An FCM customer segregated funds report, which will include information including the total funds held in segregated accounts, the funds required to be held in segregated accounts, excess segregated funds and the percentage of segregated funds that are held in cash
  • An FCM customer secured amount funds report, which will show the same information as the segregated funds report for an FCM’s secured funds

While this is a step in the right direction it still does not provide the kind of hard data that would provide traders (particularly retail forex traders) with the kind of financial numbers one gets to see in a quarterly earnings report from publically traded companies. Such a disclosure would give traders a much better insight into the health of a FCM or RFED then currently exists.

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CFTC Opens New Comment Period

Last week the CFTC released their latest rule proposal to the public regarding customer funds protection for the futures industry. Once again the CFTC is accepting comments from the public:

http://comments.cftc.gov/PublicComments/CommentForm.aspx?id=1291

The comment period is slated to be open until January 14. FXCM continues to encourage forex traders to leave comments with the regulators on this matter. Retail forex has not been included in these reforms despite the thousands of customers at PFG who traded retail forex. In addition to supporting segregation of funds protection and insurance for the industry FXCM is also proposing the following:

Proposals to Bring Full Market Transparency and Accountability to the Futures/Forex Industry

1) Require All FCM’s to Publicly Publish Their Financials Once a Quarter:
Currently, the CFTC publishes monthly “Net Capital” reports that disclose to the public how much money a Futures Commission Merchant has set aside in capital. However, that report provides very little insight into how well the company is doing financially. By requiring FCM’s and RFED’s to publish their audited financials the trading public will know how much risk they are taking with each firm since investors will be able to weigh the liabilities along with the excess capital that these firms have.

Furthermore, the published financial statement should include everything (i.e. holding company’s financials) since what happens to other subsidiaries of the company can easily affect the regulated FCM/RFED. Each company should be required to provide a link to its financials on its own homepage so that the public can do its proper due diligence.

Too often, those firms that are teetering on the edge of bankruptcy lure customers in by offering unsustainable gimmicks (dirt cheap commissions, account opening bonuses) that temporarily puts off the inevitable. Customers should be aware of the perilous finances of those firms that would offer these kinds of gimmicks before opening an account with such a firm. PFG Best was a classic example of a firm that used such gimmicks as they routinely low balled their competitors with uneconomical discounts that no reputable, legally compliant firm could match.

2) Require all FCM’s to Employ a Top Ten Accounting Firm:
There need to be much higher accounting standards than currently exist in the FCM world. The Platt Group publishes an annual ranking of public accounting firms that could be used by FCM’s. Whether it is top 10 or top 25, the main point is that FCM’s must use a nationally recognized and respected accounting firm that could apply the same tough standards to FCM’s that publicly traded companies must meet.

While no one proposal will guarantee that a future FCM will not fail, these proposals will enhance the public’s due diligence capabilities by bringing greater market transparency and accountability to the world of futures/forex trading.

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CFTC Publishes Early Comments

The CFTC has published some early comments regarding their additional customer funds protection proposals. Here is a sampling below:
http://comments.cftc.gov/PublicComments/CommentList.aspx?id=1291

· From: Brandon Shoemaker
Comment No: 58945
Date: 11/19/2012
Comment Text:
Here are my recommendations which are a result of a consensus in the trading groups i participate. 1) Require All FCM’s to Publicly Publish Their Financials Once a Quarter:
Currently, the CFTC publishes monthly “Net Capital” reports that disclose to the public how much money a Futures Commission Merchant has set aside in capital. However, that report provides very little insight into how well the company is doing financially. By requiring FCM’s and RFED’s to publish their audited financials the trading public will know how much risk they are taking with each firm since investors will be able to weigh the liabilities along with the excess capital that these firms have. Furthermore, the published financial statement should include everything (i.e. holding company’s financials) since what happens to other subsidiaries of the company can easily affect the regulated FCM/RFED. Each company should be required to provide a link to its financials on its own homepage so that the public can do its proper due diligence.

· From: William Allen
Comment No: 58946
Date: 11/19/2012
Comment Text:
Do we really need this regulations for companies to do what they know they should do anyway. Why is it that government regulate everything in our lives. What the hell is wrong with all you people in D.C.. Do you really feel the need to try to control everybody. Why don't we just enforce the laws already on the books and not create more regulation that doesn't do anything but make more rules that nobody understands or knows about. As far as I'm concerned, welcome to the USSA United Socialist States of Americka.

· From: Anthony Ingrassia
Comment No: 58947
Date: 11/19/2012
Comment Text:
Honorable Members of the Commission, As an independent CTA active in the forex markets, I find it unconscionable that forex account holders with FCMs that deal in both futures and forex (such as was the case with PFG Best) are omitted from or considered subordinate to those who hold futures accounts. Neither should RFEDs be exempted from these proposed changes to increase transparency. Thank you for the opportunity to comment.

You can also leave your own comments with CFTC by clicking the following link:
http://comments.cftc.gov/PublicComments/CommentForm.aspx?id=1291

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FXCM Submits Reform Proposals to CFTC

FXCM has formally submitted its reform proposals to the CFTC for comment. We encourage everyone to contact CFTC as well to urge greater protections for the retail forex industry: http://comments.cftc.gov/PublicComme...m.aspx?id=1291

December 14, 2012

Via Mail and Electronic Submission

Mr. David Stawick
Secretary
Commodity Futures Trading Commission
1155 21st Street, N.W. Washington, D.C. 20581

Re: Enhancing Protections Afforded Customers and Customer Funds Held by Futures
Commission Merchants and Derivatives Clearing Organizations: (RIN3038-AD88)

Dear Mr. Stawick:

Forex Capital Markets LLC (“FXCM”) is a retail foreign exchange dealer (“RFED”) and Forex Dealer Member of the National Futures Association (“NFA”). FXCM has been registered with the Commodity Futures Trading Commission (“CFTC”) as a Futures Commission Merchant (“FCM”) since 2001 and is one of the leading U.S. firms offering off-exchange forex trading to retail clients around the world. FXCM is proud of its position as an industry leader in retail FX both in the United States and globally. FXCM has been a staunch advocate for increased regulation for the U.S. forex industry and the protection of retail forex customers. FXCM submits these comments in response to the Commission’s November 14, 2012 rulemaking proposal (the “November 14th Proposal”) concerning “Enhancing Protections Afforded Customers and Customer Funds held by Futures Commission Merchants and Derivatives Clearing Organizations.”

FXCM believes that in light of the bankruptcies of MF Global and PFG Best the regulations contained in the November 14th Proposal are necessary. However, we are concerned they do not go far enough in protecting the trading public and would therefore like to propose additional protections. Since the financial crisis of 2008, many FCMs and RFEDs have been struggling financially as the traditional business model for FCMs and RFEDs has come under enormous pressure. FCMs earn commissions on each trade their customers make; however, electronic trading has caused a price competition among FCMs that has resulted in falling commissions throughout the industry. RFEDs earn revenue on the bid/ask spread but tightening spreads in the industry have pressured RFED bottom lines as well.

Additionally, interest rates have plummeted depriving FCMs and RFEDs of a large portion of revenue derived from the interest collected on customer deposits. Furthermore, decreased volatility throughout all financial markets has lowered the amount of trading in general. This constant pressure on revenues can result in a firm making aggressive, losing bets with client funds (MF Global) or in outright fraud (PFG Best).

It is precisely because of this challenging business climate that we believe the following two proposals be given serious consideration.


Require all FCMs and RFEDs to employ a Top Ten Accounting Firm

One of the many reasons that Russ Wasendorf Sr. was able to get away with his Ponzi scheme for so long was that PFG Best had very poor internal accounting procedures. While no accounting firm is perfect, there should be much higher accounting standards for FCMs and RFEDs. The Platt Group publishes an annual ranking of public accounting firms that could be used by FCMs and RFEDs. Whether it is top 10 or top 25, FCMs and RFEDs should use a nationally recognized and respected accounting firm that will apply the same accounting standards that publicly traded companies must meet.



Require All FCMs and RFEDs to Publish a Consolidated Balance Sheet and Income Statement
Once a Quarter

Futures Commission Merchants are very unique in the world of finance. They hold customer funds that are supposed to be in segregated accounts but they have no insurance in the event the firm goes bankrupt. The entire system revolves around trust. But with that trust violated something more must be offered to ease the investing public’s mind, specifically, a complete, fully audited, and publicly disclosed consolidated balance sheet and income statement.

Currently, the CFTC publishes monthly “Net Capital” reports that disclose to the public how much money a FCM or RFED has set aside in capital. However, that report provides very little insight into how well the company is doing financially. By requiring FCMs and RFEDs to publish a quarterly, consolidated balance sheet and income statement the trading public will know how much risk they are taking with each firm since investors will be able to weigh the liabilities along with the excess capital that a firm has.

Furthermore, the published balance sheet and income statement should include everything (i.e. holding company’s financials) since what happens to other subsidiaries of the company can easily effect the regulated entity. Each company should be required to provide a link to these financial statements on its own homepage so that the public can conduct proper due diligence.

Too often, those FCMs and RFEDs that are on the edge of insolvency lure customers in by marketing unsustainable offers (low commissions, account opening bonuses) that temporarily puts off the inevitable. If traders have access to such a firm’s income statement they will be able to see for themselves that these kinds of marketing gimmicks may not be producing revenue for the firm (or even leading to losses) and this will allow the trader to make a safer choice and also discourage firms from engaging in uneconomical business practices. One customer found this out the hard way:


Peregrine Financial Collapse Cost Farhan Khan His Life Savings


“But Khan was not worried about risk or diversification when he moved his money to PFG Best, he said. He had been aggressively saving for years and wanted to venture into commodities, which can produce high returns though with increased risk, to further grow his $380,000 nest egg.

In December, Khan transferred all his money from a Charles Schwab account to PFG Best, attracted by low fees that were half the cost of Schwab's and the faster trading platform.”

Had customers like Khan known the poor state of the finances of firms like PFG (who routinely hard sell these illusory discounts) then such a tragedy could have been avoided.

In addition, by requiring this additional disclosure customers will be able to watch out for firms who take excessive risks and have abnormally high volatility in their earnings, and other warning signs they may not be aware of. This would require firms to be more vigilant with the risks they are taking.

PFG Best highlights the need for putting the public interest ahead of the desire of many FCMs and RFEDs to keep their financials private. FCMs and RFEDs hold customer funds in trust. If a FCM or RFED goes out of business the collateral damage to the firm’s customers and to the confidence of market participants is far worse than with your average business, which is why the standards need to be much higher. In short, any FCM or RFED that holds customer funds in
trust needs to accept the costs that come along with that trust.

FXCM appreciates the opportunity to offer these comments to the Commission on the November
14th Proposal.



Sincerely,



Drew Niv
Chief Executive Officer
Forex Capital Markets LLC
55 Water Street, 50th floor
New York, NY 10041

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NFA Proposes New Rules


The National Futures Association has put forth some additional customer "safeguard" rules in light of the of the bankruptcies of MF Global and PFG. Again, these are steps in the right direction but we believe requiring firms to publish a quarterly, audited financial statement to be a more effective and comprehensive public safeguard.

Member Newsletter


NFA enhances monitoring of FCMs, amends forex capital requirements

At its November 15 meeting, National Futures Association's (NFA) Board of Directors approved two measures that will further enhance customer protection safeguards. The first measure will enable NFA to make better use of technology in order to better monitor futures commission merchant (FCM) segregation compliance. Secondly, NFA's Board approved rule amendments to increase the capital requirement for FCMs acting as counterparties in off-exchange foreign currency (forex) transactions with eligible contract participants (ECP).

FCM daily confirmation system

Earlier this year, as part of NFA's ongoing effort to further safeguard customer funds, NFA's Board approved a proposal to develop a daily segregation confirmation system that would require all depositories holding customer segregated and secured amount funds-including banks, clearing FCMs, broker-dealers and money market accounts-to file daily reports reflecting the funds held in segregated and secured amount accounts with each FCM's designated self-regulatory organization (DSRO). The DSRO would then perform an automated comparison of that information with the daily segregation and secured amount reports filed by the FCMs to identify any material discrepancies.

In November, NFA's Board approved amendments to Financial Requirements Section 4 in order to implement this new daily confirmation system. The new amendments will require an FCM to instruct its depositories holding segregated, secured amount and cleared swaps customer collateral to report those balances to a third party designated by NFA. The amended rule also states that in order for a depository to be deemed acceptable, it must report the FCM's customer segregated and secured amount balances and cleared swaps customer collateral balances to a third party designated by NFA.

The daily conformation system is still under implementation, but the first phase, beginning with banks, is expected to be implemented by December 31. Other categories of depositories will be added in 2013.

Increase in capital requirements for FCMs acting as counterparties in forex transactions with ECPs

Over the past year, NFA has observed that several NFA Member FCMs are almost exclusively acting as counterparties to forex transactions with ECPs. Specifically, three FCM Members have ceased to act as forex dealer members (FDM) but continue to act as counterparties to forex transactions with ECPs. Because these firms do not act as a counterparty to retail forex transactions, their minimum adjusted net capital requirement is only $1 million pursuant to NFA Financial Requirements Section 1.

Given the counterparty nature of these FCMs' forex activities, NFA is concerned that these firms are currently subject to inadequate capital requirements. Specifically, NFA believes there is no sense from a financial safeguard perspective that an FDM that acts as counterparty to a retail forex transaction must maintain at least $20 million in adjusted net capital while an FCM that engages in an identical type transaction with an ECP must only maintain a minimum $1 million in capital.

Therefore, NFA's Board approved an amendment to Section 1 that includes a provision requiring an FCM that acts as counterparty to a forex transaction with an ECP to maintain adjusted net capital of at least $20 million. This amendment was submitted to the Commodity Futures Trading Commission for approval on November 20.

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