Swaps & Derivatives: Moore & Van Allen

Overview

Our Derivatives practice assists clients with respect to a variety of OTC and cleared derivative and exchange traded transactions, including transactional, regulatory and investigation/compliance matters. Our attorneys advise a wide spectrum of U.S. and non-U.S. market participants, including swap dealers, clearing houses, futures commission merchants, sovereign entities, pensions, hedge funds, commodity pools, financial institutions, trade groups and corporate end-users across multiple industries.

On the transactional side, we represent some of the largest swap dealers and non-dealer liquidity providers in the world, including clearing houses, funds and institutions focused on Bitcoin, Ether and other digital assets. Our practice is supported by our broader financial services group of over 100 attorneys. We advise clients regarding use and treatment of derivative products in various single-lender and syndicated credit facilities, and asset securitizations. We also help clients, including registered and non-registered entities, design and review their internal compliance programs.

In addition to the inquiries regarding derivative transactions, our team is often engaged in larger projects for clients considering new products or broader institutional/portfolios review, and any regulatory implications. Here, we have assisted clients in their registration processes for swap dealer, commodity pool, commodity advisor and introducing broker requirements (or their eligibility for relevant exemptions).

For our registered clients, we have assisted them through investigations and regulatory inquiries from the CFTC, NFA, SEC and FINRA. Our Financial Services and Regulation team is nationally ranked by Chambers and regularly advises large financial institutions with insight into SEC, CFTC, Federal Reserve, and OCC regulatory systems. The team also boasts expertise in contentious matters and investigations by the Department of Justice and US Attorney’s offices.

Our team is supported by a cadre of well-trained and experienced senior attorneys and professionals who previously worked at swap dealers and international law firms.

Moore & Van Allen is an associate member of the International Swaps and Derivatives Association, Inc. and our attorneys are active members ISDA and broader market developments. We participate in panels at the ABA Annual Futures and Derivatives Law Committee Conference, FIA Law and Compliance Conference in Washington, DC, the Managed Funds Association New York Conference, and the American Conference Institute’s National Advanced Summit on Swaps and Derivatives Global Market Regulation.

Representative Work

Transactional

Prepared bespoke Confirmations under the 2006 and 2021 ISDA definitions, including caps, deal contingent and forward starting swaps, commodity swaps in energy and digital assets, and cross-currency swaps
Counsel to major Swap Dealer and project lead to re-paper and onboard swap counterparty to newly acquired bank
Assisted Swap Dealers and Non-Swap Dealer with documentation and regulatory compliance for uncleared margin rules (IM and VM)
Assisted client in development of new electronic FX platform and related agreements
Provide multiple client coverage for ISDA and FX Agreement negotiations
Assisted clients in counterparty out-reach, onboarding documentation, FAQs and direct communications to assist counterparties in understanding and completing regulatory and other onboarding documents

Regulatory (Advisory)

Advise clients on registration and exemption eligibility related to Swap Dealers, Commodity Trading Advisors, Commodity Pools, Introducing Brokers, and often related laws under the Investment Company Act and Investment Advisers Act
Prepare bespoke regulatory and terms of business documents for conducting a platform wide review of conduct management practices for a national bank, including manual risk-based assessments of more than 2400 individual conduct allegation investigations, including WIM cases, and managing outside consultants’ efforts to gather and analyze objective data to identify trends and assess compliance with relevant policy requirements. At the conclusion of that engagement, MVA evaluated the consultants’ work product and prepared the final reporting for the CFPB and OCC
Represented clients through successful CFTC engagement for no-action relief with respect to Clearing Requirements and Margin Requirements
Represented client to obtain favorable guidance from the CFTC regard prime brokered swap transaction and implications of the Swap Dealer De Minimis Exemption

Regulatory (Defense & Investigations)

Counsel for Merrill Lynch Commodities, Inc. in a recent DOJ settlement of spoofing in the precious metals market
Responding to global inquiries relating to foreign exchange for a large national bank and a large international bank, which involved managing and directing the work of multiple consultancies in the US and abroad
Responding to global inquiries relating to foreign exchange treasury activity for a large national bank and a large international bank, which involved managing and directing the work of multiple consultancies in the US and abroad
Investigation at a large financial institution regarding the use of unapproved communication channels in its investment banking division
Conducting a large-scale consumer sales practices platform-wide case review, including WIM cases, (over 1500 cases) on behalf of a different national bank to identify trends and assess compliance with legal and policy requirements