CFTC Staff Letters

The North American Derivatives Exchange (Nadex) has requested guidance regarding its Amended Order of Registration as a Derivatives Clearing Organization (the Nadex DCO Order) and Nadex’s Amended Order as a Designated Contract Market (the Nadex DCM Order, and, together with the Nadex DCO Order, the Nadex Orders), both dated March 30, 2010. Among other things, the Nadex Orders allow intermediation of contracts traded on Nadex’s designated contract market provided that such contracts are fully collateralized. Because a futures commission merchant (FCM) customer with a fully collateralized position on Nadex may suffer losses on another exchange such that the customer would owe a balance to its FCM, Nadex sought an interpretation from the Division confirming that the position on Nadex would be considered “fully collateralized” notwithstanding such a scenario. The Division of Clearing and Intermediary Oversight has concluded that an intermediated contract traded on Nadex, on behalf of the intermediary’s customer, remains “fully collateralized,” as contemplated by the Nadex Orders, notwithstanding subsequent balances owed by that customer to the intermediary due to losses suffered on other exchanges, as long as Nadex holds, at all times, sufficient funds of such customer to cover the maximum possible loss that may be sustained by such customer upon liquidation of any or all Nadex contracts.

DCIO and DMO issued a no-action letter that provides temporary, no-action relief from certain self-effectuating provisions of the Dodd-Frank Act and the CEA that otherwise would take effect on July 16, 2011, but that require further definition and may not be eligible for the exemptive relief provided by the order issued by the Commission on July 14, 2011 pursuant to section 4(c) of the CEA. The no-action relief will expire automatically upon the earlier of the effective date of the applicable final rules defining the relevant terms or December 31, 2011 and does not affect any Dodd-Frank Act implementing regulations promulgated by the Commission or the applicability of any provision of the CEA to futures contracts or options on futures contracts or to cash markets.

The Division of Clearing and Intermediary Oversight provided no-action relief to the general partners of two commodity pools from registering as CPOs under Section 4m(1) of the Commodity Exchange Act, and allowed an affiliated, registered CPO (“designee”) to serve as the CPO of the pools instead, where, among other things: (1) the general partners and the designee are under common ownership and control; (2) the general partners have delegated all of their management authority to the designee; (3) the general partners do not engage in the solicitation of investors for the pool and do not manage property of the pool; and (4) each general partner and the designee executed and submitted to the Division a written acknowledgement of joint and several liability for any violation by either of them of the Act or the Commission’s regulations in connection with the operation of their respective pools.