The futures industry’s rules for segregated funds help protect customer capital in the event of a brokerage bankruptcy**.

In recent years, many investors found out the hard way they have very little recourse to recover funds in the event of a financial firm’s bankruptcy. Although the Bernie Madoff “hedge fund” was by far the highest profile case, there were numerous less publicized bankruptcies and defaults at other firms and investments (including legitimate ones), in which investors found recouping remaining funds difficult or impossible. Sometimes it’s a case of being the last in line of a long list of creditors, a problem that’s compounded when customer funds aren’t separated from a firm’s funds. Such “commingled” funds might have been used to fund the firm’s operating expenses or in its own trading. If a firm enters bankruptcy, it can be very difficult or impossible to recover customer funds that were commingled in such a fashion.

However, all futures trading accounts, including managed futures, have the advantage of specific industry rules that require the segregation of customer funds from the firm’s own funds. The practice of segregating customer funds protects investors in the event of default at the Futures Clearing Merchant (FCM, the industry term for futures brokerage firms licensed to trade on futures exchanges in the U.S.) holding their account. While FCM bankruptcies are rare, they do occur. In 2005, Refco Inc. and 23 of its unregulated subsidiaries filed for Chapter 11 bankruptcy protection. However, Refco’s regulated subsidiaries (where customers’ futures trading and managed futures accounts resided) were unaffected and customers were able to continue trading and managing their accounts.

Investment Risk and Firm Risk

Although first-time managed futures investors might assume they’re depositing money directly with the Commodity Trading Advisor (CTA) running the fund, in fact, customers open an account in their own name at an FCM. The CTA is then given the authority to trade per the fund’s investment strategy. Segregated funds possess a separate identity from FCM funds in the firm’s bank account. Once funds are deposited, the bank signs a written acknowledgement stating it will not use the funds for anyone other than the customer. Also, the FCM is required to use these funds only in certain pre-defined instruments. The end result is that, in the event of a crash or FCM bankruptcy, customer funds can be more easily recovered.

FCM Reporting Requirements

Segregated funds are subject to stringent daily, monthly, and annual monitoring by industry regulatory agencies. Every day, FCMs must submit a report to the National Futures Association (NFA) detailing the breakdown of their customer funds. This “Segregated Investment Detail Report” (SIDR) lists the actual and expected segregated funds in the FCM’s accounts. In addition, every FCM must file monthly financial reports with the Commodity Futures Trading Commission’s (CFTC) Division of Clearing and Intermediary Oversight (DCIO) within 17 business days after the end of the month. Finally, the FCM is subject to a yearly audit by the Joint Audit Committee, a consortium of U.S. futures exchanges and regulatory organizations.

CFTC oversight

The provision for segregated funds is stipulated in the Commodities Exchange Act. As a result, the CFTC, which is the futures industry equivalent of the Securities and Exchange Commission (SEC), regulates all practices for segregated funds. Any case of malpractice results in an administrative proceeding before a CFTC law judge. If an FCM is found guilty of the charges, the CFTC can suspend or revoke trading privileges, assess penalties, or issue cease and desist orders. There have actually been very few malpractice cases; most are the result of technical or processing difficulties within an FCM, or a delay in reporting. For example, the CFTC imposed a civil penalty of $300,000 in 2009 on a large FCM for violating rules related to segregation. Besides reporting process violations, the CFTC charged the company with not holding enough funds in its customer funds account. (The shortfall occurred because the FCM had purchased Treasury notes between 2007 and 2009 using a mix of its own and customer funds.) In response to the charge, the firm established a “segregation forecasting mechanism” to ensure that proper segregation was maintained between customer and company accounts. Before making any investment in futures or managed futures, investors should research the company where they plan to open an account. The NFA makes this research easy at the BASIC (Background Affiliation Status Information Center) section of its website.

Dean Hoffman

**MF Global

Source-CME Group

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