On February 3, 2017, the U.S. Commodity Futures Trading Commission (CFTC) charged The Royal Bank of Scotland a $85 million civil monetary penalty for an attempted manipulation of the U.S. Dollar International Swaps and Derivatives Association Fix (USD ISDAFIX) benchmark. According to the CFTC’s Order, RBS bid, offered, and executed transactions in targeted interest rate products at the crucial 11:00 a.m. fixing time in order to benefit cash-settled swaptions by RBS that were priced or valued against the benchmark. RBS engaged in this manipulation over a five-year period, January 2007 through March 2012.
Recently, the CFTC and SEC have stepped up enforcement actions to prevent these market manipulation schemes. The SEC defines manipulation as “intentional conduct designed to deceive investors by controlling or artificially affecting the [trading] market[s].” According to the SEC, common manipulation schemes include:
- spreading false or misleading information;
- improperly limiting the number of publicly available shares; and
- rigging quotes, prices, or trades to create a false or deceptive demand.
The detection of these schemes is critical to maintaining public confidence in the integrity of financial markets.
CFTC and SEC Whistleblower Reward Programs
Under the CFTC and SEC Whistleblower Programs, whistleblowers may be eligible for monetary awards if they voluntarily provide the CFTC or SEC with original information about violations of federal laws that leads either agency to bring a successful enforcement action that results in monetary sanctions exceeding $1 million. Whistleblowers may receive awards of between 10-30 percent of the total sanctions imposed.
The programs also protect the confidentiality of whistleblowers and do not disclose information that might directly or indirectly reveal a whistleblower’s identity. Whistleblowers can even submit tips anonymously if represented by counsel.
Since the law went into effect, the SEC Whistleblower Office has awarded more than $149 million to 41 whistleblowers. The largest award to date is more than $30 million. The CFTC Whistleblower Office has only issued four awards to date, however, one award was for more than $10 million.
Market Manipulation Schemes and CFTC/SEC Enforcement Actions
There are many market manipulation schemes that may qualify for an award under the CFTC and SEC Whistleblower Program. Recent enforcement actions suggest the agencies may focus on three types market manipulation:
- Benchmark Rates Manipulation;
- Pump-And-Dump Schemes; and
- Spoofing Schemes.
Benchmark Rates Manipulation
In a benchmark-rate-manipulation scheme, individuals seek to increase or decrease impartial global reference rates for their own financial gain. This misconduct is typically associated with USD ISDAFIX (as seen above), benchmark-swap rates, LIBOR, Euribor, and other foreign interest-rate benchmarks.
Citibank Ordered to Pay $250M
On May 25, 2016, the CFTC ordered Citibank to pay $250 million for attempted manipulation and false reporting of USD ISDAFIX benchmark-swap rates. The CFTC uncovered numerous instances of Citibank’s USD ISDAFIX misconduct through the bank’s exotic traders’ instant messages.
Notably, as of this enforcement action, the CFTC has imposed more than $5.08 billion in penalties in its investigation of global benchmark-rate manipulation. Over $1.8 billion of these penalties has been imposed on 6 banks for misconduct relating to foreign-exchange benchmarks, while over $3.21 billion has been imposed for misconduct relating to ISDAFIX, LIBOR, Euribor, and other interest-rate benchmarks.
In a pump-and-dump scheme, individuals seek to boost a company’s stock (which they own) by issuing false or misleading statements to the marketplace. Lately, these statements have been disseminated through social media, such as Facebook and Twitter, as well as on bulletin boards and in chat rooms. After “pumping” up the stock through these false or misleading statements, the promoters then “dump” their shares to quickly profit from the misinformation.
SEC Uncovers $78 Million Pump-And-Dump
On November 15, 2015, the SEC uncovered a $78 million pump-and-dump orchestrated by Marley Coffee’s CEO, Shane Whittle. Whittle had secretly gained control of millions of the company’s shares by using a reverse merger and spreading the stock to offshore entities controlled by three accomplices to the scheme. After acquiring the stock, Whittle initiated fraudulent promotional campaigns, which caused the stock price to soar. Whittle then sold the fraudulently pumped-up stock and made millions of dollars in illicit profits.
According to the complaint, the SEC sought injunctions, disgorgement of profits, prejudgment interest, and penalties; the SEC also sought penny-stock bars against all of the individuals and an officer-and-director bar against Whittle.
Scottish Trader Sends False “Tweets” in a Pump-And-Dump Scheme
In another enforcement action, on November 5, 2015, the SEC brought charges against a Scottish trader whose false “tweets” caused the stock prices of two companies to drop sharply and triggered a trading halt in one of those companies. The scheme involved the trader’s deceptively creating Twitter accounts of well-known securities research firms and posting false statements about the two companies. Specifically, he posted a series of tweets indicating that Audience Inc. was under investigation by the DOJ. He also tweeted that Sarepta Therapeutics Inc. was under investigation by the FDA. As a result, the companies’ stock plunged 28% and 16%, respectively.
According to the SEC’s complaint, the trader was charged with securities fraud and was subject to disgorgement and a monetary penalty.
In a spoofing scheme, individuals use algorithms or other means to outpace other market participants and manipulate markets in their favor. Under the Dodd-Frank Act, spoofing is defined as “the illegal practice of bidding or offering with intent to cancel before execution.” In a typical spoofing scheme, high-frequency traders use algorithms to place a substantial amount of bids or offers on a particular security or commodity with no intention of executing. By placing these bids or offers, the traders create the illusion of demand, which subsequently drives up the trading price. Alternatively, traders also use algorithms to cancel a substantial number of bids or offers, to create the illusion of exchange pessimism. This drives down the trading price. Traders are able to profit from this manipulation by synchronizing their buying and selling with the resultant market fluctuations.
CFTC Orders High-Frequency Trader to Pay $2.8M
In the first case under Dodd-Frank’s anti-spoofing law, the CFTC ordered Panther Energy Trading LLC and high-frequency trader Michael Coscia to pay $2.8 million for illegally placing and quickly canceling bids and offers in futures contracts. The new anti-spoofing law carries a $1 million fine for each instance of spoofing. The law also carries a $250,000 fine for each count of commodities fraud.
Citigroup Global Markets, Inc. Charged $25M for Spoofing
On January 19, 2017, the CFTC charged Citigroup $25 million for spoofing in the U.S. Treasury futures markets and for failing to diligently supervise the activities of its employees and agents in conjunction with the spoofing orders. According to the agency’s Order, Citigroup’s unlawful conduct occurred between July 16, 2011 and December 31, 2012 when five of Citigroup’s traders engaged in spoofing more than 2,500 times.
CFTC Director of Enforcement Aitan Goelman commented: “Spoofing is a significant threat to market integrity that the CFTC will continue to vigorously investigate and prosecute. Additionally, as this action shows, registrants with supervisory responsibilities must provide their employees with sufficient training and have in place adequate systems and controls to detect spoofing. Failure to do so will have significant consequences.”whistleblower_lawyers_012017_infographic