Global Investment Law Watch – Page 28 – Exploring the legal and regulatory issues affecting the worldwide investment community.

United States: CFTC Sues Crypto Exchange Gemini Trust Co.

Jun 09 2022

By: Clifford C. Histed, Cheryl L. Isaac, and Christine Mikhael

On 2 June 2022, the Commodity Futures Trading Commission (CFTC) filed a complaint against crypto exchange Gemini Trust Company, LLC (Gemini) in the U.S. District Court for the Southern District of New York for allegedly making false or misleading statements of material facts to the CFTC related to the bitcoin futures contract that Gemini launched on its exchange in 2017. If successful in this litigation, the CFTC would impose a derivatives trading and registration ban on Gemini and its employees, in addition to civil monetary penalties and profit disgorgement.

According to the CFTC’s complaint, Gemini intended to self-certify its bitcoin futures contract, and it engaged with CFTC staff between July and December 2017 in connection with the self-certification. The bitcoin futures contract was to be cash-settled by reference to the underlying bitcoin price, determined by the daily bitcoin auction that took place on the Gemini Exchange. In its complaint, the CFTC alleges that the Gemini bitcoin futures contract and related spot auction were readily susceptible to manipulation.

Specifically, the CFTC alleges that:

Gemini represented to the CFTC that Gemini required all transactions to be fully “prefunded”, despite the fact that Gemini was lending digital assets to traders on an unsecured basis at low rates;
Gemini made false or misleading statements relating to self-trading and did not effectively prohibit self-trading from occurring in the Gemini bitcoin auctions (with about 70% of the total auction trading volume resulted from one market participant trading with itself in December 2016);
Gemini entered into bespoke fee arrangements with certain market makers that were not available to all Gemini market participants and were not disclosed to the public; and
Gemini provided false or misleading statements to the CFTC regarding trading volume and liquidity on the Gemini Exchange.

The CFTC emphasized in its complaint that the bitcoin futures contract was particularly significant because it was to be among the first digital asset futures contracts listed on a U.S. derivatives exchange. This action makes clear regulators’ intense focus of crypto assets, and the stakes are high: If the CFTC is successful, Gemini and its employees and agents would effectively be banned from U.S. derivatives markets, in addition to being subject to civil monetary penalties and profit disgorgement. CFTC Chairman Rostin Behnam has previously warned that the agency’s recent crypto-related enforcement actions were just the “tip of the iceberg,” and the Gemini lawsuit is evidence that there are more enforcement actions to come.

Australia: Cybersecurity now a legal obligation for AFS Licensees

Jun 09 2022

By Kane Barnett and Bernard Sia

As technology continues to drive change within the financial services industry, Australian courts and regulators have confirmed the need for Australian financial services (AFS) licensees to address the cybersecurity risks. On 5 May 2022, the Australian Federal Court ruled in favour of the Australian Securities and Investments Commission (ASIC), holding that AFS licensee RI Advice Group Pty Ltd (RI Advice) had breached its statutory obligations by failing to have adequate cybersecurity measures in place.

Australia: Eagerly Awaits Foreign Financial Service Providers’ Legislation

Jun 07 2022

By Jim Bulling

In February this year we provided an update on the introduction of the draft legislation providing relief to Foreign Financial Services Providers (FFSPs) in Australia.

As we discussed back in February the draft legislative pack provided three significant potential exemptions for FFSPs namely:

Professional Investor Exemption
Comparable Regulator Exemption
Fit and Proper Person Test Exemption

United States: All Square: Amended CFTC “Block Trade” Definition Officially Effective

May 31 2022

By: Cheryl L. Isaac and Michael G. Lee

On 25 May 2022, the U.S. Commodity Futures Trading Commission’s (CFTC) block trade no-action relief, provided in CFTC No-Action Letter (NAL) 20-35, expired. As of that day, all swap execution facilities (SEFs) are required to comply with the amended definition of “block trade” provided under CFTC Regulation 43.2.

“Block trades” are large, privately negotiated (either directly or through a broker) swap transactions that meet certain quantity thresholds. Block trades must qualify for execution apart from the SEF’s order book or trading platform in accordance with the relevant SEF’s rules, pursuant to CFTC Regulations.

Europe: AIFMD II – Proposed Refinements to Loan Originating Fund Proposals

May 31 2022

By: Philipp Riedl

On 18 May 2022, the Rapporteur submitted to the Committee on Economic and Monetary Affairs (ECON) a report suggesting changes to the EU Commission’s envisaged regulation of loan originating funds under its proposed AIFMD amendments (AIFMD II). The report includes some proposed relief, notably:

United States: What’s in a Name? SEC Proposes Amendments to Fund Names Rule & ESG Disclosure Requirements

May 26 2022

By: Clair Pagnano

In a significant departure from the SEC’s long-standing position on the use of fund names, the SEC is proposing amendments to Rule 35d-1 that would expand the Names Rule to include terms denoting strategies, thereby subjecting funds that use the terms “Growth,” “Value,” and funds that use ESG-related terms in the fund’s name to the rule. It would also prohibit funds from using ESG-related terms in their names if ESG factors are considered to the same extent as other screening factors in the management of the fund (so-called “integration” funds). These and other key aspects of the proposed rule include:

Australia: ESG Investing a target for the New Government?

May 23 2022

By Jim Bulling and Kithmin Ranamukhaarachchi

A Federal election in Australia was held at the weekend which resulted in a change of Government. One of the signature priorities of the incoming Government is to introduce policies which more comprehensively address climate change challenges.

United States: MNPI (aka, “My Next Possible Investigation”): The SEC’s Scrutiny of MNPI Compliance Programs

May 11 2022

By: Keri E. Riemer

The SEC’s Division of Examinations recently released a risk alert describing a pattern of deficiencies relating to investment advisers’ use of material non-public information (MNPI). The Staff highlighted the following as areas of concern:

Alternative Data. Advisers that used data from non-traditional sources beyond company financial statements, filings, and press releases appeared to not have adopted or implemented written policies and procedures reasonably designed to address the potential risk of receiving and using MNPI through such sources.
“Value-Add Investors”. Advisers did not have—or did not appear to implement—adequate policies and procedures related to investors who are more likely to possess MNPI (e.g., officers or directors of a public company, asset management firm principals or portfolio managers, and investment bankers).
Expert Networks. Advisers did not appear to adequately track calls with expert network consultants, retain detailed notes from the calls, and monitor trading activity related to companies in industries similar to those discussed during the calls.
Deficiencies related to Access Persons. The Staff identified advisers who failed to correctly identify “access persons” (as defined in Rule 204A-1(c) under the Investment Advisers Act), ensure that those access persons obtain pre-approval for investments in IPOs and other similar offerings, and maintain adequate records of the holding and transactions of access persons.

The Staff also encouraged industry participants to review their practices, policies, and procedures regarding the topics addressed above. We recently issued a client alert which describes the risk alert in greater detail and provides takeaways for industry participants.

Europe: FCA Consults on Permitting Side Pockets for UK Retail Funds Affected by Conflict in Ukraine

May 09 2022

By: Andrew Massey and Robert Lloyd

On 28 April 2022, the FCA published consultation paper 22/8 on proposals to protect investors in UK authorised funds by allowing authorised fund managers (AFMs) to create side pockets in the form of separate unit classes for funds affected by the conflict in Ukraine.

The proposals are novel for UK authorised funds in at least two respects. Firstly, they would allow side pockets to be created without requiring a shareholder extraordinary resolution or at least 60 days’ prior notice. Secondly, the AFM would be able to suspend dealings in the unit class formed to create the side pocket without having to suspend dealing in the entire fund.

Europe: FCA Challenge to UK Fund Service Providers

May 09 2022

By: Andrew Massey and Melissa Vance

Fund managers can expect changes to custodian and other fund service provider practices in response to regulator challenge, and should review their due diligence of service providers.

In a letter on 23 March 2022, the FCA instructed the Chief Executive and Boards of third-party custodians, depositories for authorised and non-authorised funds, and third-party administrators to review key risks identified by the FCA, including the following: