On November 18, 2016, the CFTC will cease issuing Special Calls via the legacy Form 40/40S and begin issuing Special Calls using a new, electronic filing, submitted directly to a CFTC database (the "New Form 40/40S"). In a memorandum titled "Not Your Grandmother's Form 40," Cadwalader attorneys review the convergence of New Forms 102 and New Forms 40/40S, the expanded Scope of the New Form 40/40S, updating/refreshing the Forms, and next steps for clients.
Cadwalader attorneys explained that commonly used forms upon which the CFTC relies to conduct market surveillance, including monitoring compliance with position limits, soon will enter the digital age – the Form 40 and Form 40S. The CFTC Division of Market Oversight ("DMO") will issue the new Form 40/40S pursuant to Special Calls to market participants that hold a reportable position in certain CFTC-regulated futures and swaps markets. At a high level, the Form 40/40S requests information about the ownership and control structure of the reportable trader, according to the Cadwalader attorneys.
The attorneys stated that the New Form 40/40S requests significantly more data about the reportable trader than the legacy Form 40/40S. Furthermore, unlike the legacy Form 40/40S, the New Form 40/40S includes an affirmative obligation to update the reported information if and when it changes.