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Cybersecurity Viewed as Market Risk by CFTC

By Douglas E. Arend, Jeffry M. Henderson & Aimee Wildstone on May 6, 2015
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In a recent public speech, CFTC Chairman Timothy Massad described cybersecurity as “perhaps the single most important new risk to market integrity and financial stability.”  On March 18, 2015, CFTC staff conducted a roundtable regarding this topic, during which CFTC suggested possible proposed rulemaking.  CFTC staff said that CFTC is considering a rule imposing cybersecurity requirements on exchanges and clearing organizations, but one that at least initially would not apply to other market participants.  Chairman Massad indicated that a proposed rule would focus on setting standards for testing: (a) system safeguards; (b) vulnerability and penetration; (c) key controls; and (d) business recovery and disaster recovery. 

Staff suggested that proposed regulations may be based on existing “best practices” in the industry and address frequency of systems testing.  For example, staff is considering whether to define “key control testing” as an assessment of operational and automated system controls based on potential risks associated with such systems.

In light of the specificity of some of the staff comments, and the clear suggestion that rules will be forth-coming, it would be prudent for firms to start to address the risks that were noted by the CFTC staff now.  Aside from avoiding criticism by the regulator, if a cyber-penetration were to hit a firm, and that firm had failed to implement best practices known to the industry right now, the liability incurred by the firm to its customers and to other industry participants could prove to be devastating to the firm.  This is not a topic on which procrastination is prudent!

Photo of Douglas E. Arend Douglas E. Arend

Doug Arend focuses his practice on commodity futures, derivatives and securities, with an emphasis on managed funds. He represents registered and exempt investment advisers, commodity pools and hedge funds, traditional proprietary trading firms, introducing brokers, futures commission merchants and broker-dealers. Doug has significant…

Doug Arend focuses his practice on commodity futures, derivatives and securities, with an emphasis on managed funds. He represents registered and exempt investment advisers, commodity pools and hedge funds, traditional proprietary trading firms, introducing brokers, futures commission merchants and broker-dealers. Doug has significant experience advising funded-trader proprietary trading firms regarding a wide variety of structuring and regulatory matters. He concentrates on complex transactional and regulatory matters, including public and private offerings, fund formation, business structuring, registration and compliance. His experience includes regulatory matters involving designated contract markets and derivatives clearing organizations, particularly in the area of prediction markets offering event contracts.

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Photo of Jeffry M. Henderson Jeffry M. Henderson

Jeff Henderson, a former general counsel for a publicly traded futures commission merchant, has deep futures and derivatives industry experience. He focuses his practice on a variety of complex compliance, regulatory, investigation, litigation, and managed fund matters. This representation regularly involves futures, derivatives…

Jeff Henderson, a former general counsel for a publicly traded futures commission merchant, has deep futures and derivatives industry experience. He focuses his practice on a variety of complex compliance, regulatory, investigation, litigation, and managed fund matters. This representation regularly involves futures, derivatives, swaps, forex, securities, cryptocurrency, binary options and prediction markets. He represents and advises a broad range of clients, including futures commission merchants, broker-dealers, investment advisers, commodity trading advisers, introducing brokers, forex trading firms, commodity pool operators, and hedge fund managers. He also provides counsel to a variety of industry participants, including traditional proprietary trading firms and exempt investment managers regarding disclosure matters and compliance obligations and regulatory and enforcement matters. Jeff also has significant experience advising funded-trader proprietary trading firms regarding a wide variety of structuring and regulatory matters. He is also regularly involved in defending members and member firms before CFTC, NFA, SEC and FINRA. His experience includes regulatory matters involving designated contract markets (DCM) and derivatives clearing organizations (DCO), particularly in the area of prediction markets offering event contracts, as well as currently serving as a public director and member of the Regulatory Oversight Committee for a U.S.-based DCM and a DCO involved in prediction markets.

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Photo of Aimee Wildstone Aimee Wildstone

Aimee loves working in Support because she loves helping people. When she’s not helping lawyers change the law, you’ll find her hiking, biking, or camping.

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  • Posted in:
    Banking, Finance and Securities
  • Blog:
    Financial Services Observer
  • Organization:
    Greenberg Traurig, LLP
  • Article: View Original Source

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