Archive for the ‘Regulation’ Category

Regulate thyself, But do so quickly

Thursday, October 23rd, 2008

The National Futures Association (NFA) circulated a set of proposed rules to Forex dealers this week. The proposed rules covered a variety of topics including requotes, limit orders, hedging, customer statements, discretionary trading and trading system testing. This signals the first serious attempt by regulators to set standards for the operations of retail Forex dealers. Prior regulations have primarily dealt with solicitation practices and financial requirements.

The proposals deal with several important aspects of a Forex dealer’s operations and address several standing issues in the FX marketplace. The new rules are the consequence of a set of investigatory member visits conducted by the NFA over the past year. Ironically after having spent a year collecting information and drafting the new rules the NFA has given its Forex Dealer Members (FDMs) only two weeks to respond with comments.

Though the proposals are far from perfect and in fact demonstrate a lack of complete understanding of the operations of an FX dealer, the new rules are a step in the right direction. The industry is in need of a set of best practices that could create a quality base level offering for all retail FX clients. One hopes though that unlike in the past the NFA will work more closely with its members to revise the proposals thus creating a set of more logical and effective rules designed to truly benefit the industry and its customers. It’s also imperative that the Forex dealers themselves don’t abstain from commenting, as many have in the past, and actively participate in the rule making process.

The NFA’s letter to Forex Dealers describing the proposals and outlining their intent can be found here.

The actual proposed language for the new Forex related rules can be found here.

The Rumors of My Death Have Been Greatly Exaggerated

Saturday, October 18th, 2008

With the October 31st deadline for the first Net Capital requirement increase fast approaching, many may be wondering: “Whatever happened to all that market consolidation that was supposed to reshape the Forex industry?” Some smaller, and more importantly less reputable, firms have fallen by the wayside in recent years, yet the number has been relatively small. Further, given the size of many of those firms, their exit from the retail FX space has had little or no impact on the industry. With the October increase just around the corner we now see that few firms are likely to be seriously affected. The CFTC just released Futures Commissions Merchant (FCM) financial data for the end of August. Let’s take a look at who is and isn’t making the cut. For the sake of being thorough let’s begin with the comprehensive list of FX service offering registered FCMs; 31 players in all.

Forex Dealer Adjusted Net Capital
MF GLOBAL INC. $578,263,985
INTERACTIVE BROKERS LLC $538,143,197
OANDA CORPORATION $165,458,966
FOREX CAPITAL MARKETS LLC $91,840,037
TRADESTATION SECURITIES INC $88,369,268
ROSENTHAL COLLINS GROUP LLC $79,638,871
GLOBAL FUTURES & FOREX LTD $73,219,116
GAIN CAPITAL GROUP LLC $67,906,278
INTERBANK FX LLC $36,504,426
PEREGRINE FINANCIAL GROUP INC $21,345,435
CAPITAL MARKET SERVICES LLC $20,199,028
FX SOLUTIONS LLC $19,574,103
IFX MARKETS INC $18,623,981
ALPARI (US) LLC $15,786,390
I TRADE FX LLC $14,952,004
ODL SECURITIES INC $14,870,166
3D FOREX, LLC $13,178,356
MB TRADING FUTURES INC. $12,767,499
GFS FOREX & FUTURES INC $11,451,981
IG MARKETS INC. $10,111,559
HOTSPOT FXR LLC $9,942,771
EASY FOREX US LTD $9,824,509
IKON GLOBAL MARKETS INC. $9,544,902
DORMAN TRADING LLC $8,608,792
CMC MARKETS (US) LLC $8,543,520
ACM USA LLC $8,372,738
FRIEDBERG MERCANTILE GROUP INC $8,176,903
FOREX CLUB FINANCIAL COMPANY INC $7,558,421
ADVANCED MARKETS INC $6,786,042
BACERA CORPORATION $5,412,516
MG FINANCIAL LLC $5,393,739

Now let’s start with some easy trimming. The very top of the list includes firms such as MF Global and Interactive Brokers. Though they do offer FX services, retail Forex is not a major part of their business and to top it off they could meet the new requirements without batting an eyelash. Let’s also add TradeStation and Rosenthal Collins to that category.

Now let’s take a look at some of the Forex industry’s more established players, the guys that are definitely making the cut. The following Forex dealers all have $20 million or more in Adjusted Net Capital: Oanda, FXCM (Official name on the list: Forex Capital Markets), GFT (Global Futures & Forex), Gain (also known as Forex.com), Interbank FX, PFG (Peregrine Financial Group, a Futures firm with a strong FX offering) and CMS Forex (Capital Market Services). Let’s also add FX Solutions to the list. Given that the firm is owned by City Index, I think they’ll manage to scrape the remaining $425,897 from underneath Michael Spencer’s couch cushions. IFX Markets joins the pack as well. The firm is being eliminated as an independent entity after its merger with FX Solutions. But this is by no means due to a lack of capital, but rather due to the fact that both firms are now owned by City Index.

Now let’s trim a little from the bottom of the list. How are the significantly undercapitalized doing? MG Financial is indeed a casualty. The firm has been sold to Rosenthal Collins Group in order to avoid extinction. Bacera is moving offshore. Few will notice its departure as few had even noticed its existence. Advanced Markets, though highly undercapitalized, is not likely to face extinction. The firm counts the Australian banking giant Macquarie Group amongst its shareholders and is unlikely to be hung out to dry.

Let’s also take a few not so relevant players off the list. Dorman Trading offers FX through an FX Solutions White Label Partnership (WLP.) The established Futures boutique could probably scrape together the necessary capital, but given that FX is not the core of its business it is anyone’s guess as to whether it will actually bother. Yet again its presence in the retail FX space has not been significant and no one is likely to notice its departure. Friedberg finds itself in a similar position. The 37 year old financial services firm will be left to decide whether the retail FX space is worth a contribution of capital. While we are at it, let’s also check off CMC Markets who recently ceased all U.S. operations. Given the Contracts for Difference (CFD) trading behemoth’s size it was not for want of money.

Before we go any further let’s quickly add and remove FXDD (FXDirectDealer) from the list. This Forex Dealer has neglected registration until the very last moment, doing its best to ride out every last possible loophole. The firm’s FCM registration is currently pending though. FXDD whose parent company Tradition booked an operating profit of 150 million Swiss Franc in 2007, is unlikely to be strapped for cash.

This leaves us with a much shorter list of 12 Forex dealers. These are our walking undead, the firms whose future is allegedly in limbo.

Forex Dealer Adjusted Net Capital
ALPARI (US) LLC $15,786,390
I TRADE FX LLC $14,952,004
ODL SECURITIES INC $14,870,166
3D FOREX, LLC $13,178,356
MB TRADING FUTURES INC. $12,767,499
GFS FOREX & FUTURES INC $11,451,981
IG MARKETS INC. $10,111,559
HOTSPOT FXR LLC $9,942,771
EASY FOREX US LTD $9,824,509
IKON GLOBAL MARKETS INC. $9,544,902
ACM USA LLC $8,372,738
FOREX CLUB FINANCIAL COMPANY INC $7,558,421

Yet even here we don’t seem to get the chance to witness any serious market instability. Firstly let’s note that the numbers we see are for the end of August. Extreme volatility and equity market collapse in September and October has lead to record profits for many Forex dealers. This could easily shore up the books of several firms. Furthermore the FX market’s fast passed growth has made it a darling for private equity firms who may be willing to fund an undercapitalized broker (at a discount of course) if it has the size and stamina to demonstrate serious perspective growth. This may add significant capital to the books of some FX dealers.

Forex Club and Alpari can easily funnel in more money from their Russian operations or simply target the U.S. market from offshore. I Trade will probably make the cut despite its recent regulatory problems. In the worst case scenario it is likely to bring in some capital from its prior Jamaican investors. ACM is likely to bring funds in from its larger Swiss operations and OLD and IG from their U.K. home offices. No one is shedding a tear for Hotspot either, whose parent Knight Capital Group will easily pony up the missing capital. IKON could bring in capital from its New Zealand operations or likely find the necessary capital on its own. MB Trading should also do well, potentially moving funds from its Broker Dealer (BD) arm or by merging capital with 3D Forex with whom it shares common ownership.

Granted there is no guarantee that these firm’s parent companies or foreign operations will be willing or able to front enough cash to meet the $20 million requirement. If this is the case though, most will not be acquisition targets but will either move their FX business offshore or operate the FX portion of their business as introducing brokers.

The only firms whose fate is really up in the air are GFS and Easy Forex and even these two might just prove capable of bringing money in from their foreign operations or by moving entirely offshore if they are not able to bring on private equity. All in all few firms are really likely to meet their maker due to the increased capital requirements. Even if a few of the firms on the short list do end up moving offshore or selling their U.S. FX operations to a competitor the effect on the industry will be minor at best.

Don’t forget to pony up

Friday, October 17th, 2008

The National Futures Association (NFA) sent a notice to its Forex Dealers Members (FDMs) reminding them that it’s proposed amendments to FDM financial requirements are set to go into effect on October 31st. The amendments, expected to be approved by the CFTC prior to their effective date, enforce the first stage in the capital requirement increases passed by Congress last spring as part of the CFTC Reauthorization Act of 2008. The amendments will require FDMs to maintain a minimum net capital of $10 million. This is the first of three requirement increases set to culminate in a $20 million requirement in the spring of 2009. Forex Dealer Members who intend to continue operating past the deadline must submit estimated net capital computations to the NFA by 10am on October 31st.

The amendment also includes a revision to NFA financial requirements Section 12(b). Section 12(b) called for increased capital requirements of 200% of the base requirement for FDMs that take advantage of the security deposit exemption allowing clients to hold less than 1% margin on open positions. Under the amended requirements, firms who fall under the security deposit exemption will only be required to maintain 150% of the base requirement.

The latter revision does alleviate some of the unnecessary regulatory overhead on firms who utilize the exemption. Nevertheless the requirement does not take into account the amount of leverage used by the respective firms. Thus, the requirement still places undue burden on smaller firms while potentially exposing larger firms to excessive risk. As of late, several Forex dealers have commented on the need for a formula based rule properly addressing the risks of lower margin requirements.

Buyer Beware

Thursday, October 16th, 2008

The Commodities Futures Trading Commission (CFTC) has approved the NFA’s proposed Rules 2-41 and 2-42. The two new rules, set to go into effect on November 30th, require all NFA members who act as Commodity Trading Advisors (CTAs or Money Managers) or Commodity Pool Operators (CPOs or Fund Managers) trading FX to provide proper disclosure documents to their perspective clients. All disclosure documents must be filed with the NFA prior to use. Rules 2-41 and 2-42 are a first step in the NFA’s attempts to create Forex specific rules for CTAs and CPOs after Congress passed the CFTC Reauthorization Act of 2008, requiring all Money Managers and Fund Managers trading FX on behalf of clients to register with the CFTC.

The NFA has also provided text required for inclusion in the disclosures. The disclaimer promptly cautions clients that FX is not traded on an exchange and thus may be subject to greater risks than exchange traded products. Such distinction of FX as a non-exchange traded product has become common practice for the NFA as of late. It is true that exchange traded accounts are given greater bankruptcy protection than over-the-counter (OTC) traded accounts under U.S. bankruptcy law. Nevertheless the fact that the NFA has spent considerable effort pointing out the difference and no effort lobbying congress and the CFTC to address the issue, reminds one of the Futures industry’s considerable influence with the NFA. In fact just this past year the NFA has asked several Forex Dealer Members to disclaim that Forex is not traded on an exchange. The NFA claimed that the words “Foreign Exchange” may mislead potential clients into thinking that retail FX contracts are in fact exchange traded. This is of course a ludicrous claim given that the Bank of International Settlement (BIS) estimates exchange traded FX to make up only 3% of the total Forex market. If anything it is Futures firms that should be required to disclaim that their FX products are in fact non-OTC.

The NFA, an allegedly pro-competition, self-regulatory industry association has been anything but. Though it is only fair to point out that the NFA has been handed a rather difficult task in regulating the often unruly retail Forex industry, its approach has been far from fair and balanced. The NFA has time and again refused to work with the more reputable elements of the industry or grant them rule making participation in this allegedly self-regulatory organization. This has led to a significant portion of the NFA’s FX regulation being rather senseless, as it has been drafted by people with often little knowledge of the operations of the retail Forex industry. This has exacerbated the growing pains experienced by any regulator when faced with the prospect of overseeing a new industry. Over the last few years the NFA has been forced to repeal its own rules and rulings on several occasions simply because it had not taken the time to seriously consider Forex Dealer Members’ suggestions during the first iteration. As one might imagine this approach has not earned the respect and cooperation of the industry’s players and has further exacerbated the problem.

NFA, CFTC go hunting heads in Money Manager land

Thursday, September 18th, 2008

The CFTC and NFA have stepped up their momentum in going after FX Money Managers.

On September 17th, the National Futures Association (NFA) announced that it had taken an emergency Member Responsibility Action against registered CTA, Capital Blu Management LLC. The action suspends Capital Blu’s NFA membership and prohibits the firm from soliciting or accepting customer funds, placing trades on behalf of customers or disbursing funds without the NFA’s prior approval.

The CFTC has also stepped up its actions and is actively pursuing investigations into multiple FX Money Managers. This recent activity can largely be attributed to the CFTC’s renewed sense of authority over FX fraud after the elimination of the Zelener loophole with the passage of the CFTC Reauthorization Act of 2008 on June 18th.

Unregistered Money Managers have long been the bane of the Retail FX industry. Largely allowed to run amok due a lack of regulatory oversight, many FX Money Managers have been peddling unrealistic returns while employing dishonest tactics in managing clients’ funds. The Forex industry has long awaited for the regulators to step in and take better control of the situation. I am sure many industry players will be very grateful for the regulator’s stepped up efforts in policing this vital sector of the industry

Over the past couple of years the NFA has put in an immense amount of effort into going after the solicitation of unregistered solicitors. This proved ineffective in curbing FX fraud as many of these solicitors simply introduced clients for self traded accounts. Unfortunately the self regulatory body has largely ignored the more dire problem of unscrupulous Money Managers.

In recent months many legitimate FX Money Managers offering more realistic (if lower) returns, have come forward to voluntarily register with the NFA prior to the enactment of mandatory registration. This has been largely spurred by a move on the part of many U.S. Retail FX Dealers to require registration from Money Managers carrying power of attorney on their clients’ accounts.