Bankruptcy Court Rules on Whether Funds Held by Bankrupt Futures Commission Merchant for Retail Forex and OTC Metals Trading Are “Customer Property” Entitled to Priority Distribution

Peregrine Financial Group, Inc. (PFG) was a registered futures commission merchant (FCM) and a “Forex Dealer Member” of the National Futures Association (NFA).  In July 2012, after discovering the theft of client funds, PFG filed for bankruptcy protection.  Later that year, PFG’s bankruptcy trustee (Trustee) sought permission to distribute “customer property” to PFG customers who traded “commodity contracts.”  Such customers are entitled to priority in distributions from a commodities broker bankruptcy.  The Trustee did not include in the proposed distribution PFG customers who engaged in retail foreign exchange (retail forex) and over-the-counter spot metals (OTC metals) transactions.  As a result, Secure Leverage Group, Inc. and other customers of PFG that had accounts with PFG for trading in retail forex and OTC metals commenced an adversary proceeding.  They sought a declaration that their retail forex and OTC metals trading constituted “commodity contracts” within the meaning of the U.S. Bankruptcy Code and that, accordingly, they were entitled to share in the proposed priority distribution of “customer property.”  Jockeying over “customer” status is not unique to bankruptcies of FCMs; similar issues arise in SIPA liquidations as well.  See “U.S. District Court Rules on Whether a Party to a Repurchase Agreement with a Broker-Dealer That Enters Liquidation Is a ‘Customer’ of the Broker-Dealer under SIPA,” Hedge Fund Law Report, Vol. 7, No. 18 (May 8, 2014).

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