CFTC/NFA forum

On August 11, 2008, CFTC announced the formation of a Retail Foreign Currency Fraud Enforcement Task Force. This special task force was established to investigate and litigate fraud in the off-exchange retail foreign currency market.   On August 18, 2008, FX Week published the following lead story on the subject.

Brokers suspicious of retail FX task force

WASHINGTON, DC – The launch of a retail foreign exchange fraud prevention taskforce by the US futures regulators has sparked concern among brokers that it could be a veiled move to lure retail FX traders towards exchanges.

The Commodity Futures Trading Commission (CFTC) set up the task force as part of recent actions to toughen standards in the retail FX market, which trades about $100 billion a day globally. The dedicated team of FX enforcers, launched August 11, is already operational, and has been charged with “stopping unscrupulous individuals working in retail FX”, according to the regulator.

“Foreign exchange fraudsters’ illegal activities taint the reputations of those working honestly in the futures industry,” said CFTC commissioner Michael Dunn, based in Washington, DC.

Industry participants agreed the creation of an enforcement task force will help clean up the market, and make it a better place for honest brokers to do business. But, some argue the CFTC might be encouraging traders to move to exchanges, and questioned whether the move was driven by a genuine desire to weed out the ‘bad apples’ and not to carve out market share.

“When you look at the way the announcements have been made, you wonder whether it is not structured to move people towards more exchange trading,” said one head of a retail foreign exchange brokerage in London.

Glenn Stevens, chief executive at online trading company Gain Capital in New York, said this could make it easier for the CFTC to regulate the market. The US Congress only clarified the extent of the CFTC’s regulatory oversight of the over-the-counter retail FX market earlier this year (see box). “It would make life simpler for the CFTC, because then it would just impose policies upon exchanges,” said Stevens.

He added, however, that he did not believe this was the reasoning behind the move but acknowledged the regulator had not been as even-handed in applying resources and updates towards the OTC market as it had the exchanges.

Others add that the creation of this task force might make investors more cautious about entering the market. “It is a positive step but it may have negative effects on the industry’s image in the short run,” said Felix Shipkevich, vice-president and general counsel at Capital Market Services in New York. “Some retail customers who see this will think this industry is filled with fraud.”

Since being given more clout through the Modernisation Act in 2000, the CFTC has brought about 100 prosecutions and judgements against illegal traders of FX futures and options. This is around 25% of the total 398 across all products. In the same period, the CFTC obtained monetary judgements of $560 million over illegal FX trades, which is 43% of the total $1.3 billion in all products. Defrauded FX investors have also been restituted $450 million, 47% of the total $957 million in all products.

“Most of the problems have been coming from product mis-selling by unregistered solicitors, companies that introduce customers to brokers, and not necessarily from the brokers,” said Shipkevich.

The establishment of a task force comes after recently increased capital requirements for foreign exchange retail brokers. On July 23, industry body, the National Futures Association raised the adjusted net capital by 75% to $20 million. The increase will be phased in through $5 million increments between October 31 this year and May 16, 2009. A good number of industry experts expect this to result in consolidation of the retail FX market, as the smaller brokers are liquidated or bought out by larger companies.

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