As the regulatory landscape is constantly evolving, Compliance Risk Concepts (“CRC”) is issuing its monthly review and summary of FINRA, SEC, and NFA notices and bulletins to assist our clients in keeping abreast of notable regulatory developments and deadlines in an effort to strengthen their compliance and regulatory initiatives.
Regulatory Notices
Per Regulatory Notice 23-15, the SEC has amended Rule 15c6-1(a) under the Securities Exchange Act of 1934 to shorten the standard settlement cycle for most broker-dealer transactions from two business days after the trade date (T+2) to one business day after the trade date (T+1). To aid firms in preparing for this transition, FINRA is updating the Regulatory Extension (REX) system to enable firms to file extension of time requests under the shortened settlement cycle. Firms may file such requests beginning May 31, 2024, via the batch file process and by completing the online request form by logging into the REX system via FINRA Gateway. Further, FINRA is updating the REX Customer Test Environment to allow testing under various scenarios for both batch and online request form filings.
Special Notices
There were no Special Notices in September.
Final Rules
Per Release No. 33-11235, the SEC is adopting amendments to Volume II of the Electronic Data Gathering, Analysis, and Retrieval system Filer Manual (“EDGAR Filer Manual” or “Filer Manual”) and related rules and forms. EDGAR Release 23.3 will be deployed in the EDGAR system on September 18, 2023.
Per Release No. 33-11238, the SEC is amending the rule under the Investment Company Act of 1940 (“Investment Company Act” or “Act”) that addresses certain broad categories of investment company names that are likely to mislead investors about an investment company’s investments and risks. The amendments to this rule are designed to increase investor protection by improving, and broadening the scope of, the requirement for certain funds to adopt a policy to invest at least 80 percent of the value of their assets in accordance with the investment focus that the fund’s name suggests, updating the rule’s notice requirements, and establishing recordkeeping requirements. The SEC is also adopting enhanced prospectus disclosure requirements for terminology used in fund names, and additional requirements for funds to report information on Form N-PORT regarding compliance with the names-related regulatory requirements.
Per Release No. 34-98437, the SEC is adopting amendments to the SEC’s regulations under the Privacy Act of 1974, as amended (“Privacy Act”). The amendments revise the SEC’s regulations under the Privacy Act to clarify, update, and streamline the language of several procedural provisions.
Proposed Rules
Per Release No. 33-11232, the SEC is proposing rule and form amendments concerning access to and management of accounts on the Commission’s Electronic Data Gathering, Analysis, and Retrieval system (“EDGAR”) that are related to potential technical changes to EDGAR (collectively referred to as “EDGAR Next”). The SEC is proposing to require that electronic filers (“filers”) authorize and maintain designated individuals as account administrators and that filers, through their account administrators, take certain actions to manage their accounts on a dashboard on EDGAR. Further, we propose that filers may only authorize individuals as account administrators or in the other roles described herein if those individuals first obtain individual account credentials in the manner to be specified in the EDGAR Filer Manual. As part of the EDGAR Next changes, the SEC would offer filers optional Application Programming Interfaces (“APIs”) for machine-to-machine communication with EDGAR, including submission of filings and retrieval of related information. If the proposed rule and form amendments are adopted, the SEC would make corresponding changes to the EDGAR Filer Manual and implement the potential technical changes.
Per Release No. 33-11250, the SEC is proposing rule and form amendments to provide a tailored form to register the offerings of registered index-linked annuities (“RILAs”). Specifically, the SEC is proposing to amend the form currently used by most variable annuity separate accounts, Form N-4, to require issuers of RILAs to register offerings on that form as well. To facilitate this amendment, the SEC is also proposing to amend certain filing rules and make other related amendments. These changes would, if adopted, implement the requirements relating to RILAs contained in Division AA, Title I of the Consolidated Appropriations Act, 2023. Further, the SEC is proposing other amendments to Form N-4 that would apply to all issuers that would use that form under the proposal. The SEC is also proposing to apply to RILA advertisements and sales literature a current SEC rule that provides guidance as to when sales literature is materially misleading under the Federal securities laws. The SEC is proposing a technical amendment to Form N-6 to correct an error from a prior SEC rulemaking. Finally, the SEC requests comment as to whether to require the registration of market-value adjustments associated with certain annuities on Form N-4 as well.
Interim Final Rules
There were no interim final rules in September.
Interpretive Releases
There were no interpretive releases in September.
There were no policy statements in September.
Notices to Members
Notice I-23-16
September 8, 2023
Board and Nominating Committee Members Whose Terms Will Expire at the Board's 2024 Regular Annual Meeting and Executive Representative Reminder
On November 17, 2022, NFA's Board of Directors unanimously approved amendments to NFA's Articles of Incorporation (Articles)1. As a result, effective February 2024, NFA's Board will be reduced from 29 to 21 Directors, and the terms of all current Directors will expire at the Board's regular Annual Meeting on February 15, 2024.
Each year, prior to October 15th, NFA's Secretary notifies all Members of the elected Board Directors and Nominating Committee members whose terms will expire at the Board of Directors' regular annual meeting in the following categories: FCM and LTM; IB; CPO and CTA; and SD, MSP and RFED. Given NFA's Board's reduction, the attached list of Board members whose terms expire in February 2024 contains the names of all current Directors in the Member categories. Also attached is a list of Nominating Committee members in each of the Member categories whose terms expire in February 2024.
NFA's Secretary requests Members to recommend eligible persons to the Nominating Committee for consideration to fill each open Board position and the open Nominating Committee position for each Board category. Incumbent Directors, if otherwise eligible, may be recommended to the Nominating Committee. The specific criteria regarding the composition of the representatives in each Member category on the Board of Directors and the Nominating Committee is provided below. Please use the attached form to submit names of persons eligible to fill the vacancies on the Board of Directors and the Nominating Committee.
The Nominating Committee will consider the names that are submitted and nominate at least one person for each open Board position and one person for each open Nominating Committee position. Thereafter, additional nominations may be made by petition pursuant to NFA's Articles. Upon completion of its work, NFA will issue a Notice to Members announcing the Nominating Committee's nominations to fill the Board and Nominating Committee vacancies, which will also provide the procedures for filing a nomination by petition.
NFA's Board of Directors and Open Positions as of the February 15, 2024 Board of Directors' Regular Annual Meeting
Since all Directors' terms will expire at the February 2024 Board meeting, the following vacancies must be filled:
Four (4) FCM representatives of which two (2) must be FCMs ranked as a top-ten FCM and (2) must be FCMs not ranked as a top-ten FCM based on the total of futures customer segregated funds, cleared swaps customer collateral and foreign futures or foreign options secured amounts (customer segregated funds), as those terms are defined in the applicable Commission regulations, held as of June 30 preceding the election;
One (1) IB representative;
Three (3) representatives of CPOs or CTAs that are NFA Members reporting funds under management allocated to futures and swaps (as defined in Article XVIII) on NFA Form PQR or NFA Form PR as of June 30 preceding the election (Funds Under Management) of which one (1) representative must be a CPO or CTA ranked within the top 10 percent based on Funds Under Management; one (1) representative must be a CPO or CTA ranked within the top 20 percent based on Funds Under Management; and one (1) is an at-large representative from CPOs or CTAs with no restriction on its rank among CPOs and CTAs reporting Funds Under Management; and
Four (4) SD/MSP/RFED representatives of which two (2) must be representatives of SDs that are Large Financial Institutions as of June 30 preceding the election and two (2) representatives of SDs, MSPs or RFEDs that are not Large Financial Institutions as of June 30 preceding the election. NFA's Board of Directors has resolved to use the list of Participating Dealers on the Federal Reserve Bank of New York's website on a designated webpage "OTC Derivatives Supervisors Group" to define Large Financial Institutions.
Nominating Committee Open Positions
Nominating Committee open positions for the 2024 Member election:
NFA is a membership organization. NFA Members have a voice in NFA's governance through the exercise of the right to recommend candidates and to nominate and elect individuals to serve on NFA's Nominating Committee and Board of Directors. The Nominating Committee relies heavily on the recommendations of the membership in making its nominating decisions. Please give this matter serious consideration and return your submission(s) to NFA for receipt no later than September 29, 2023.
Notice I-23-17
September 20, 2023
FCM and IB Members—FinCEN issues alert on virtual currency investment scam known as "Pig Butchering"
On September 8, 2023, the Financial Crimes Enforcement Network (FinCEN) issued a news release alerting U.S. financial institutions of a prominent virtual currency investment scam known as “pig butchering.” The alert explains the scam’s methodology; provides behavioral, financial, and technical red flags to help financial institutions identify and report related suspicious activity; and reminds financial institutions of their reporting requirements under the Bank Secrecy Act (BSA). As U.S. financial institutions under the BSA, NFA Member futures commission merchants and introducing brokers should review the alert and comply with the suspicious activity report (SAR) requirements if applicable.
News Releases
September 12, 2023
NFA orders Denver-based firm Transamerica Asset Management Inc. to pay a $140,000 fine and sanctions a former Transamerica employee
September 12, Chicago—NFA issued Decisions against Transamerica Asset Management Inc. (Transamerica), an NFA Member commodity pool operator located in Denver, Colorado, and its former employee, Quynh Pham Keiser, resolving charges brought against them by NFA's Business Conduct Committee (Committee or BCC).
The BCC Decisions are based on a Complaint issued by the Committee and separate settlement offers submitted by Transamerica and Keiser, in which they neither admitted nor denied the Complaint's allegations. In the Transamerica Decision, the BCC found Transamerica failed to diligently supervise the firm's operations, in violation of NFA Compliance Rule 2-9(a), and ordered Transamerica to pay a $140,000 fine to NFA. In the Keiser Decision, the BCC found Keiser willfully submitted materially false or misleading information to NFA, in violation of NFA Compliance Rule 2-2(f), and ordered Keiser not to reapply for NFA associate membership, apply for NFA membership or principal status with a Member, or act as a principal of a Member at any time in the future.
The complete text of the Complaint, the Transamerica Decision, and the Keiser Decision can be viewed on NFA's website.
September 18, 2023
NFA takes emergency enforcement action against Doral, Fla. commodity pool operator Bit5ive Mining Fund Advisor, LLC and its principal Richard Alexander Acosta
September 18, Chicago—NFA has taken an emergency enforcement action against Bit5ive Mining Fund Advisor, LLC, (Bit5ive Advisor), an NFA Member commodity pool operator located in Doral, Florida, and Richard Alexander Acosta, a listed principal and the sole associated person of Bit5ive Advisor.
NFA took this action to protect participants in Bit5ive Mining Fund LP, a commodity pool operated by Bit5ive Advisor, as well as the investing public, the derivatives markets, and other NFA Members because of Bit5ive Advisor and Acosta's failure to cooperate with NFA. Due to their failure to produce requested documents and information, NFA is unable to determine, among other things, who invested in the Fund, as well as when and how much; whether there are additional investors in the Fund other than those disclosed to NFA; what Bit5ive Advisor and Acosta did with the funds received for investment in the Fund; and the source of funds used to repay one investor.
Effective immediately, Bit5ive Advisor and Acosta are suspended from NFA membership and prohibited from soliciting or accepting any funds for investment in the Fund or in any other pools or other investment vehicles over which Bit5ive Advisor or Acosta exercise control. Bit5ive Advisor and Acosta are further prohibited from disbursing or transferring any funds from any accounts in the name of Bit5ive Advisor, Bit5ive Fund, or from the account of any other commodity pool or other investment vehicle operated by Bit5ive Advisor or Acosta, without NFA's prior approval. This action will remain in effect until Bit5ive Advisor and Acosta demonstrate to NFA's satisfaction that they are in complete compliance with all NFA requirements.
Bit5ive Advisor or Acosta may request a hearing before NFA's Hearing Committee.
The complete text of the emergency action is available on NFA's website.
September 18, 2023
NFA orders Houston-based introducing broker Bosworth Brokers LLC and one of its principals to each pay a $100,000 fine
September 18, Chicago—NFA has ordered Bosworth Brokers LLC, an NFA Member introducing broker located in Houston, Texas, and Andrew Michael Gizienski, a principal and associated person of Bosworth Brokers LLC, to each pay a $100,000 fine.
The Decision, issued by an NFA Hearing Panel, is based on a Complaint authorized by NFA's Business Conduct Committee (BCC) and a settlement offer submitted by Bosworth Brokers LLC, Gizienski and Dennis Michael Bosworth, another principal and AP of Bosworth Brokers LLC, in which they neither admitted nor denied the Complaint's allegations. The BCC Complaint alleged that Bosworth Brokers LLC failed to comply with its recordkeeping obligations under NFA Compliance Rule 2-10 and that Gizienski failed to observe high standards of commercial honor and just and equitable principles of trade under NFA Compliance Rule 2-4, due to Gizienski's use of an unapproved, unmonitored platform to communicate with a Bosworth Brokers LLC customer, which deleted communications after seven days. The Complaint also alleged that Bosworth Brokers LLC failed to promptly list Gizienski as a principal, in violation of NFA Registration Rule 208. Finally, the Complaint alleged that Bosworth Brokers LLC and Bosworth failed to supervise, in violation of NFA Compliance Rule 2-9.
In its Decision, the Panel found that Bosworth Brokers LLC and Bosworth violated NFA Compliance Rule 2-9; that Bosworth Brokers LLC violated NFA Compliance Rule 2-10 and NFA Registration Rule 208; and that Gizienski violated NFA Compliance Rule 2-4.
The complete text of the Complaint and the Decision can be viewed on NFA's website.
September 25, 2023
NFA permanently bars Chicago-based commodity pool operator Tyche Asset Management LLC and its principal Phillip Moncel Galles from membership
September 25, Chicago—NFA has permanently barred Tyche Asset Management LLC, a former NFA Member commodity pool operator (CPO) located in Chicago, Illinois, and Phillip Moncel Galles, a former NFA Associate and principal of Tyche Asset Management LLC, from NFA membership status and from acting or being listed as a principal of an NFA Member.
The default Decision, issued by NFA's Business Conduct Committee (BCC), is based on a Complaint issued by the BCC and Tyche Asset Management LLC and Galles' failure to file an Answer. The BCC found that Tyche Asset Management LLC and Galles engaged in a deceitful course of conduct to defraud customers and failed to uphold high standards of commercial honor and just and equitable principles of trade in connection with a commodity pool or other investment vehicle that Tyche Asset Management LLC and/or Galles operated. The BCC also found that Tyche Asset Management LLC and Galles provided misleading information to NFA about the firm's activities as a CPO and failed to cooperate promptly with NFA during an examination.
The complete text of the Complaint and Decision can be viewed on NFA's website.
At the end of September, the SEC continued with its enforcement actions for failing to preserve electronic communications. The SEC’s investigations uncovered pervasive and longstanding off-channel communications at 10 more firms. The firms agreed to pay combined penalties of $79 million. These actions follow on the heels of similar charges against 11 other firms only the previous month that resulted in $289 million in combined penalties.
With the sustained SEC enforcement concerning communications recordkeeping, firms should ensure that they have recently reviewed their communications surveillance policies and procedures, particularly those involving personal mobile devices and messaging applications. In this context, CRC believes that it is more of a question of when – not if – firms will face questions about off-channel communications as part of an examination or other focused requests from the SEC and/or FINRA.
Regulators continue to demonstrate their commitment to protecting investors by aggressively pursuing bad actors and reviewing and updating regulations to guard investors against constantly evolving threats.
The best approach to regulatory compliance is a proactive one. Staying ahead of the curve by taking note of statements and guidance released by regulators and using them as a barometer to assess the current regulatory climate can help ensure that a firm is prepared for a regulatory exam. Rather than scrambling to rectify issues or meet deadlines, a thorough, active compliance program that considers and incorporates regulatory developments is in a better position to satisfy regulators and preserve operations so they can best serve their clients.
For more information, please contact:
Mitch Avnet
p. (646) 346-2468
David Amster
p. (917) 568-6470
Sources:
