On October 2, 2023, the Commodity Futures Trading Commission (CFTC) published a notice of proposed rulemaking (NPRM), which includes a proposal to amend portions of 17 C.F.R. § 4.7. Under Regulation 4.7, commodity pool operators (CPOs) and commodity trading advisors (CTAs) are exempt from certain disclosure, reporting, and recordkeeping requirements, so long as the “prospective and actual pool participants and/or advisory services are restricted to individuals and entities considered ‘Qualified Eligible Persons’” (QEPs).Continue Reading CFTC Proposes Amendments to Regulation 4.7 Exemption

The U.S. Securities and Exchange Commission (SEC) approved FINRA’s proposed amendments (Amendments) to Rule 4210 on July 27, 2023.

In summary, the Amendments amend Rule 4210 in the following respects:

  • Eliminate the 2% maintenance margin for nonexempt accounts.
  • Permit dealers to take a capital charge in lieu collecting margin from accounts for net mark-to-market losses provided that the dealer’s net capital deductions for all accounts combined cannot exceed $25 million.
  • Make certain clarifying and conforming changes to Rule 4210.

Continue Reading Rule 4210 Amendments Approved With May ’24 Effective Date

On June 1, 2023, The Commodity Futures Trading Commission (CFTC) published an advanced notice of proposed rulemaking (ANPRM) seeking public comment on potential amendments to the Risk Management Program (RMP) requirements in CFTC Regulations 23.600 and 1.11 (collectively, “RMP Regulations”), which are applicable to swap dealers (SDs) and futures commission merchants (FCMs).Continue Reading CFTC Seeks Comment on the Risk Management Program Requirements for Swap Dealers and Futures Commission Merchants With a Focus on Digital Assets

In September 2019, repurchase agreement (repo) rates spiked, rising as high as 10% intraday. The spike was significant as rates were more than 300 basis points above the federal funds target range–thirty times larger than the preceding week. The United States Department of Treasury’s Office of Financial Research (OFR) conducted a study on the spike

The United States Department of Treasury’s Office of Financial Research (OFR) conducted a pilot survey to determine why primary dealers prefer trading in the noncentrally cleared bilateral repurchase agreement (NCCBR) market segment of the United States repurchase agreement (repo) market. Primary dealers serve as the trading counterparties for the Federal Reserve’s open market operations. The OFR Brief suggests primary dealers prefer to trade in NCCBR over other repo market segments because it provides them with much greater flexibility.Continue Reading Netted Packages Drive Large Trading Volumes in Noncentrally-Cleared, Bilateral Repos

On June 5, 2023, the Commodity Futures Trading Commission (CFTC) issued an order authorizing CBOE Clear Digital, LLC (“CBOE Clear”), a registered derivatives clearing organization (DCO), to clear margined digital asset futures contracts.  Concurrent with the June 5th order, CFTC Commissioner Christy Goldsmith Romero issued a supporting statement in respect of the order. This blog post provides an overview of the terms and conditions of the CFTC’s June 5th order, particularly in light of certain of Commissioner Goldsmith Romero’s comments, following a brief outline of the administrative history related to CBOE Clear’s digital asset product line-up.Continue Reading CFTC Permits CBOE Clear Digital, LLC to Clear Digital Asset Futures on a Margined Basis

While working out the possible impact of the SEC’s proposal to require central clearing of triparty repurchase agreements, we realized that we short-changed the analysis of multilateral netting in our last post. Our explanation of the SEC’s example focused on just the cash side of the trades, which is to say the amounts to be paid. To appreciate multilateral netting fully, we need to consider the security side of the trades, what is to be delivered, as well. This post seeks to rectify our oversight.Continue Reading Treasury Clearing Proposal:  More on Multilateral Netting

Our previous post explained the SEC’s proposal (the Proposal) to require central clearing of all “eligible secondary market transactions” with a participant in the Fixed Income Clearing Corporation (FICC). In this post we review the benefits of central clearing cited by the SEC to justify its Proposal. We also discuss “hybrid clearing” and “multilateral netting.”
Continue Reading Central Clearing of Treasury Trades—What the SEC Hopes to Accomplish


1. Inventory “relationship level” considerations in legal documentation that governs your derivatives trading relationships (ISDA Master Agreements, Futures Customer Agreements, Master Securities Forward Transaction Agreements, etc.)

a. Example: Decline in Net Asset Value Provisions (Common in ISDAs)

i. Identify the trigger decline levels and time frames at which transactions under the agreement can be terminated (25% over a 1-month period – is that measured on a rolling basis or by reference to the prior month’s end?)

ii. Confirm whether all or only some transactions can be terminated (typically, it is all transactions)

iii. Identify the notice requirements that apply when a threshold is crossed

iv. Identify whether the agreement includes a “fish or cut bait clause” that restricts the ability of the other party to designate the termination of the transactions under the trading agreementContinue Reading Market Volatility Regulatory Outline for Asset Managers