Today There Are SEFs: The Final Piece in a Pablo Picasso Abstract Rendition of Effective Swaps Regulation?

Today the world of Swap Execution Facilities has arrived, and the last material piece of Title VII is now in place amidst the complex mosaic of derivatives reform that began in the United States with the passage of Dodd Frank in 2010. In the words of CFTC Chairman Gary Gensler, “a paradigm shift” has occurred.

But when we step back and view the virtually completed mosaic of our new derivatives laws and regulations what do we have? Do we have a completed puzzle that matches the promised picture on the front of the box, or do we have something different, something that seems more like a Pablo Picasso abstract rendition?

My View: Reflections on the JP Morgan’s Settlements — Human Nature, Internal Controls, and the CFTC’s Broad New Anti-Manipulation Authority

On September 19, 2013, as widely reported in the media, JP Morgan consented to and was assessed fines by four international regulators totaling US $920 Million related to what has been colloquially referred to as the “London Whale” trades during 2012.These trades caused the Bank to suffer losses of US $6.2 Billion.

There is little I can add to the facts of this matter that already are set forth in detail in all the regulatory complaints, especially those of the UK Financial Conduct Authority and US Securities and Exchange Commission; JP Morgan’s own study of this incident issued during January 2013; and the media reports.

However, the reported history of this matter, as well the apparent pendency of an action by the Commodity Futures Trading Commission, makes me think of two things:

1. no matter how good they are, all financial services firms remain vulnerable to individual employees doing bad things. Unless a firm’s culture and infrastructure are sufficiently robust, these bad things can go undetected for a period of time causing big losses and profound regulatory expense (not to mention potential private litigation expenses and a loss of reputation harming business too); and

2. new anti-manipulation authority given to the CFTC in 2010 as part of Dodd Frank is very broad, and the way the Commission has implemented this authority through rule adoption is broader still. Industry participants must carefully consider their proprietary trading activities where intent and proof of an artificial price may no longer be required for a successful CFTC manipulation prosecution.

Financial services firms must continue to address these realities and take appropriate actions.

Summer Reading You May Have Missed — An Important Article on Systemic Risks by DTCC: But Did They Identify the Top Risks?

While much of Wall Street, The City and continental Europe were away for summer vacation this past August, Depository Trust and Clearing Corporation published an important thought piece on the most significant systemic risks impacting the financial services industry today and likely tomorrow, entitled “Beyond the Horizon.” This publication deserves the attention of everyone in the financial services business for serious reflection and prompt consideration regarding systemic risks their businesses confront, appropriate mitigation efforts, and opportunities, if any. But did DTCC really identify the top risks?