FINAL NOTICE

To:
The Bank of New York Mellon London Branch (“BNYMLB”)

The Bank of New York Mellon International Limited (“BNYMIL”)

Reference
Numbers:
122467

183100



Address:
1 Canada Square
London E14 5AL
UNITED KINGDOM

Date:
14 April 2015



1.
ACTION

1.1.
For the reasons given in this Notice, the Authority hereby imposes on BNYMLB

and BNYMIL (together, “the Firms”) a financial penalty of £126,000,000.

1.2.
The Firms agreed to settle at an early stage of the Authority’s investigation. The

Firms therefore qualified for a 30% (stage 1) discount under the Authority’s

executive settlement procedures. Were it not for this discount, the Authority

would have imposed a financial penalty of £180,000,000 on the Firms.

2.
SUMMARY OF REASONS

2.1.
In the period 1 November 2007 to 12 August 2013, the Firms breached Principle

10 in failing to arrange adequate protection for safe custody assets for which they

were responsible. The Firms also breached a number of rules in Chapter 6 of the

Client Assets Sourcebook (“Custody Rules”).

2.2.
The Firms are the third largest and eighth largest custodian in the UK. They

provide custody services jointly to 6,089 clients in the UK. The Firms undertake

business in the UK under the Custody Rules. Under these rules, firms are required

to maintain records and conduct reconciliations at regular intervals on a legal

entity-specific basis. The Firms failed to do this.

2.3.
The Firms:

(1)
failed
to
implement
adequate
organisational
arrangements
for

safeguarding client assets, as a result of the failings set out in this Notice;

(2)
maintained records and accounts on a global, rather than entity-specific

level and in that respect failed to meet the requirements of CASS 6.5.2R;

(3)
failed to conduct external reconciliations between the Firms’ records and

accounts and those of affiliate group companies which the Firms appointed

as sub-custodians. Where the Firms appointed non-affiliate third parties as

sub-custodians, they also failed to conduct separate, entity-specific

reconciliations with the accounts and records of the non-affiliate third party

sub-custodians
(instead
performing
external
reconciliations
on
an

enterprise-wide basis only);

(4)
failed to have an entity-specific process in place prior to July 2012 to

identify reconciliation discrepancies for which the Firms were responsible,

as a result of which the Firms were unable to demonstrate compliance with

the requirements of CASS 6.5.10R;

(5)
failed to take the necessary steps to ensure that assets from 13 accounts,

identified as proprietary assets on the Firms’ own records and accounts,

which were deposited into client omnibus accounts with certain third

parties were identifiable separately to assets belonging to clients in those

third party accounts. This resulted in the commingling of Firm and clients’

custody assets;

(6)
on occasions used clients’ assets held in omnibus accounts, without the

express prior consent of all clients whose assets were held in those

accounts, to settle a transaction before corresponding assets had been

received under a covering trade of the relevant client. This resulted in

some clients’ assets being used without consent to settle other clients’

trades. During most of the Relevant Period, the Firms did not have in place

systems and controls that could identify the number of instances of this

failure;

(7)
failed to implement CASS-specific governance arrangements, such as

committees that dealt specifically with CASS issues or accountability

matrices for or job descriptions referring to CASS roles and responsibilities,

until 2011. Although the Firms had some governance committees that

included CASS in their Terms of Reference prior to this date, their

consideration of CASS-specific issues was on an ad hoc basis only. This

was insufficient given the nature of the Firms’ business and the Firms’

failure to identify and remedy the issues outlined in this Notice during the

Relevant Period;

(8)
failed to provide CASS-specific training to employees with operational or

oversight responsibility for custody assets until March 2012; and

(9)
as a result of failing to comply with the requirements of the Custody Rules

the Firms’ CASS resolution packs were inadequate (from 1 October 2012

when the requirement to maintain a CASS resolution pack came into

force). CASS resolution packs are important as they can assist an

insolvency practitioner in achieving a timely return of custody assets in the

event of insolvency.

2.4.
An insolvency process is often, by its nature, complex and fast-moving. Many

unpredictable issues may unfold that need to be dealt with at short notice in order

to ensure minimum impact on consumers. The custody asset regime seeks to

ensure that the wind-down of a firm in the event of an insolvency is carried out in

as orderly a manner as possible and in a way that reduces the risk of loss of

consumers’ custody assets. The custody asset regime is designed to ensure

protection of custody assets and, to the extent possible, to speed up the return of

those assets to clients in the event of firm failure, thereby reducing costs which

would be met out of clients’ assets. It is also designed to ensure that records in

relation to custody assets are reconciled regularly to ensure their accuracy and

enable them to be retrieved promptly while the firm is a going concern as well as

when the firm has become a gone concern. For example, accurate, entity-specific

records and accounts should be accessible to an Insolvency Practitioner in the

event of a custodian’s insolvency.

2.5.
Compliance with the Custody Rules reduces the extent of the following kinds of

loss or delay:

(1)
diminution of assets due to costs of the insolvency: where a firm’s

accounts and records are not compliant with the Custody Rules, the

Insolvency Practitioner may need to:

(a)
seek directions from the Court in order to return assets to clients;

(b)
resolve multiple claims for the same assets from different entities,

including those subject to different insolvency regimes;

the costs of which would be borne by the custody asset pool and therefore

ultimately by the clients to whom those assets belong;

(2)
loss in opportunity to deal with assets: clients lose opportunities to

complete pending transactions, to trade on or to realise the value of their

assets while they wait for assets to be returned by an appointed

Insolvency Practitioner. During the period when clients do not have access

to their assets, the value of those assets may fluctuate and if the value

decreases a client may therefore lose economic value; and

(3)
delay in the return of assets: the Insolvency Practitioner has to identify

and go through a process to independently verify for which clients the

insolvent entity holds assets and to settle unresolved shortfalls, which

process causes delay in the return of assets.

2.6.
Compliance with the Custody Rules prior to insolvency can have a mitigating

effect in an insolvency process for the reasons given above and is something over

which firms have complete control. It is in this context that the Authority views

breaches of the Custody Rules, and a firm’s failure to comply with those rules, as

a particularly serious matter.

2.7.
The Firms’ use of global custody platforms which, during the Relevant Period, did

not record with which Bank of New York Mellon Group (“BNY Mellon Group”)

entity clients had contracted, caused several of the Firms’ failings. Had the Firms

complied with the Custody Rules, they would, in the event of the insolvency of

BNYMLB and/or BNYMIL at any point during the Relevant Period, have been able

to provide entity-specific accounts and records to the Insolvency Practitioner,

which would have provided a record against which the Insolvency Practitioner

could compare other information sources held by the Firms. This would have

reduced the risks identified in paragraph 2.5 and the complexity in returning

assets to customers in an already complex insolvency situation.

2.8.
The Firms’ failure to maintain books and records on an entity-specific basis meant

that the Firms were unable to fulfil their obligations to:

(1)
maintain entity-specific records and accounts, which meant that the Firms’

records and accounts failed to meet the requirements of CASS 6.5.2R;

(2)
conduct entity-specific reconciliations between the Firms’ records and

accounts and those of affiliate group companies which the Firms appointed

as sub-custodians or to conduct entity-specific external reconciliations with

the accounts and records of non-affiliate third party sub-custodians by

whom client assets were held (instead performing external reconciliations

on an enterprise-wide basis only);

(3)
maintain an adequate CASS resolution pack (from 1 October 2012 when

the requirement to do so came into force) that would have assisted an

insolvency practitioner in achieving a timely return of custody assets in the

event of BNYMLB’s and/or BNYMIL’s insolvency; and

(4)
submit accurate Client Money and Assets Returns (“CMAR”) from October

2011 (when the requirement to do so came into force) until the end of the

Relevant Period.

2.9.
As a consequence, the Authority has concluded that the Firms failed to arrange

adequate protection for the custody assets for which they were responsible as

required by the Custody Rules.

2.10. The Authority considers the Firms’ failings to be serious for the following reasons:

(1)
The BNY Mellon Group, of which the Firms are part, is the world’s largest

global custody bank by custody assets. An insolvency of the size and

complexity of BNYMLB’s and/or BNYMIL’s would have had a severe impact

on the UK market. Had the Firms complied with the requirements of the

Custody Rules, their wind-down would have been carried out in the most

orderly manner possible and in a way that would have reduced the risks

identified in paragraph 2.5. As a result of the Firms’ misconduct, the total

value of custody assets at risk of being impacted to some degree in the

manner discussed above was significant. The custody asset balances held

by BNYMLB and BNYMIL increased significantly over the course of the

Relevant Period and peaked at approximately £1.3 trillion and £236 billion

respectively. Whilst the extent of any financial impact of the breaches on

clients is uncertain, any breach that exposes clients to additional risk of

being impacted is unacceptable;

(2)
given the systemically important nature of the Firms and the fact that

custody assets were central to the Firms’ business, it was particularly

important that they comply with the Custody Rules, a matter entirely

within their control. It is particularly serious in this context that the Firms

failed to comply with the fundamental requirement that their accounts and

records be maintained on an entity-specific basis;

(3)
a number of the Firms’ failings were failings of the Firms as a whole

(rather than incidences isolated by business line or account), indicating

that the Firms’ compliance with the Custody Rules was seriously

inadequate;

(4)
a number of the breaches of the Custody Rules took place, undetected,

throughout the Relevant Period (a period of five years and nine months);

(5)
the failings took place during a period when there was significant stress

within the market, meaning that the Firms should have had heightened

regard to the requirements of the Custody Rules;

(6)
all of the Firms’ failings, except for the one identified in April 2014, were

drawn to the Firms’ attention by the Authority, the Firm working with an

external regulatory adviser (appointed by the Firms one year before the

end of the Relevant Period and following the Authority’s CASS visit of May

2012) and the Skilled Persons, rather than through their own compliance

monitoring or internal audit function; and

(7)
during the Relevant Period there was a high level of awareness in the

financial services industry of the importance of adequately protecting client

assets. In particular, the Authority published a report in January 2010

highlighting concerns about custody asset failings.

2.11. The Authority has taken into account that:

(1)
the Firms have committed significant resources to reviewing its

arrangements for compliance with the Custody Rules and to remediating

the issues referred to in this Notice;

(2)
the Firms have provided significant cooperation and assistance during the

course of the Authority’s investigation;

(3)
the Authority has not found that the Firms acted deliberately or recklessly;

(4)
although custody assets were at risk of some loss as described in

paragraph 2.5 above, there was no actual loss of any custody assets in

this instance; and

(5)
ensuring the CASS Rules are adhered to supports the Authority’s

operational objectives of securing an appropriate degree of protection for

consumers and protecting and enhancing the integrity of the UK financial

system.

2.12. The Authority therefore imposes a financial penalty on the Firms in the amount of

£126,000,000 pursuant to section 206 of the Act.

3.
DEFINITIONS

3.1.
The definitions below are used in this Final Notice.

“The Act” means the Financial Services and Markets Act 2000;

“The Authority” means the body corporate previously known as the Financial

Services Authority and renamed on 1 April 2013 as the Financial Conduct

Authority;

“BNY Mellon” means The Bank of New York Mellon Corporation;

“BNYMIL” means the Bank of New York Mellon International Limited;

“BNYMLB” means the Bank of New York Mellon London branch;

“CASS Rules” means the Client Assets Sourcebook contained in the Authority’s

Handbook;

“Client Money Rules” means Chapter 7 of the CASS Rules (as defined above);

“CMAR” means Client Money and Assets Return;

“Custody Rules” means Chapter 6 of the CASS Rules (as defined above);

“DEPP” means the Authority’s Decision Procedure & Penalties Manual;

“EG” means the Enforcement Guide;

“Principles” means the Authority’s Principles for Businesses;

“Relevant Period” means 1 November 2007 to 12 August 2013;

“Skilled Person” means the two firms appointed by the Firms in July 2013 under

section 166 of the Act to make a report to the Authority on the Firms’ compliance

with the CASS Rules;

“the Wider CASS Review” means the review of the Firms’ CASS compliance

framework undertaken by an external regulatory adviser appointed by the Firms

in October 2012.

4.
FACTS AND MATTERS

4.1.
The BNY Mellon Group, of which the Firms are a part, is the world’s largest global

custody bank by custody assets. BNYMLB is the London branch of BNY Mellon, a

custodian with its headquarters in the US and regulated primarily by the Federal

Reserve Board. The custody asset balances held by BNYMLB and BNYMIL during

the Relevant Period peaked at approximately £1.3 trillion and £236 billion

respectively.

4.2.
The Firms’ primary business activities consist of the provision of custody services

and related agency services to professional and retail clients, using global custody

platforms and sub-custody networks and holding physical securities (for example

bearer note certificates) in vaults in the US and UK. The Firms also act as

custodians for other entities such as fund managers and pension funds. The

Firms’ clients are largely institutions, corporations, funds and high net worth

individuals. BNY Mellon’s regulatory filing in the third quarter of 2013 stated that

the Firms’ “trading activities are focused on acting as a market maker for our

customers and facilitating customer trades. Positions managed for our own

account are immaterial to our foreign exchange and other trading revenue and to

our overall results of operations.” The Firms do not carry out any material

business with clients as part of which client assets are rehypothecated or used for

the Firms’ own benefit or as collateral for the Firms’ own exposures.

4.3.
The Firms have been authorised and regulated by the Authority since 1 December

2001 to perform a number of activities, including the safeguarding and

administration of assets and/or arranging the safeguarding and administration of

assets.

4.4.
BNYMLB holds custody assets under contractual agreements with clients to

provide custodian services. BNYMLB used a sub-custody network to gain direct

access (as a participant) or indirect access (via an external sub-custodian) to

national and international central securities depositaries. During the Relevant

(1)
prior to the second quarter of 2009: BNYMLB used BNY Mellon’s own

network of contractually-appointed sub-custodians and direct securities

depositaries to hold securities for its clients;

(2)
from the second quarter of 2009: BNYMLB used a BNY Mellon Group entity

as its global sub-custodian to hold securities for its clients. That entity then

used its own network of contractually-appointed sub-custodians and direct

securities depositaries to hold those securities for BNYMLB’s clients. For

certain national central securities depositaries, BNY Mellon was itself

appointed as a sub-custodian of the BNY Mellon Group’s sub-custodian.

4.5.
BNYMIL also holds custody assets under contractual agreements with clients to

provide custodian services. Similarly to BNYMLB, BNYMIL used a sub-custody

network to gain direct and indirect access to national and international central

securities depositaries. During the Relevant Period:

(1)
prior to late 2009: BNYMIL used BNY Mellon as its global sub-custodian to

hold securities for its clients. BNY Mellon then used its own network of

contractually-appointed sub-custodians and direct securities depositaries

to hold securities for BNYMIL’s clients;

(2)
from late 2009: BNYMIL used a BNY Mellon Group entity as its global sub-

custodian to hold securities for its clients. That entity then used its own

network of contractually-appointed sub-custodians and direct securities

depositaries to hold those securities for BNYMIL’s clients.

4.6.
The Firms also hold physical securities (such as bearer note certificates) for

clients and appoint a BNY Mellon Group entity to store those assets in vaults in

the US and UK.

4.7.
The assets received on behalf of the Firms’ clients and held with third parties

were safe custody assets and were subject to the relevant requirements and

standards set out in the Authority’s Principles and the Custody Rules.

Records and accounts failings

4.8.
CASS 6.5.2R requires a firm to maintain its records and accounts in a way that

ensures their accuracy, and in particular their correspondence to the safe custody

assets held for clients.

4.9.
The Firms used BNYM Group custody platforms that operated on a global, rather

than entity-specific level to process securities transaction information. Although

these platforms recorded the clients for whom custody assets were held, their

securities entitlements and the securities depositary where the assets were held,

they did not record the legal entity identified in the relevant client contracts, or

indicate where the Firms had used another BNY Mellon entity as a global sub-

custodian, which meant the Firms’ records and accounts failed to meet the

requirements in CASS 6.5.2R.

4.10. Had the Firms complied with the requirement to maintain their records and

accounts so that they reflected accurately the basis upon which custody assets

were held, in the event of their insolvency, they would have been able to provide

a record against which the Insolvency Practitioner could compare other

information sources held by the Firms. This would have reduced the risks

identified in paragraph 2.5 above and the complexity in attempting to return

assets to customers in an already complex insolvency situation.

Failure to conduct entity-specific external reconciliations

4.11. CASS 6.5.6R requires a firm to conduct “on a regular basis” reconciliations on a

legal entity-specific basis between its internal accounts and records and those of

any third parties by whom those custody assets are held (“external

reconciliations”).

4.12. During the Relevant Period, the Firms performed external reconciliations between

what was held for clients by the BNY Mellon Group as a whole (as recorded on its

global platform) and the records of non-affiliate third parties.

4.13. However, as a result of the Firms’ failure to record on their custody platforms the

legal entity with which clients contracted, the Firms were unable to conduct

entity-specific external reconciliations. Where the Firms used a BNY Mellon Group

entity as their global sub-custodian to hold securities, the Firms were required to

conduct external reconciliations between their internal accounts and records and

those of that BNY Mellon Group sub-custodian. However, the Firms’ reconciliation

systems did not recognise affiliate entities as third party sub-custodians, as a

result of which the Firms were not able to carry out external reconciliations with

affiliate sub-custodians. Where the Firms appointed non-affiliate third parties as

sub-custodians, they also failed to conduct separate, entity-specific reconciliations

with the accounts and records of the non-affiliate third party sub-custodians

(instead performing external reconciliations on an enterprise-wide basis only).

4.14. Further, in the case of some physical assets held in a US vault for BNYMLB clients,

BNYMLB carried out external reconciliations between the BNY Mellon Group’s

accounts and records and those of non-affiliate sub-custodians (rather than on an

entity-specific level, as required by CASS 6.5.6R) every 18 to 24 months.

External reconciliations should have been carried out ‘on a regular basis’, which in

the context of BNYMLB’s operations should have been at least every six months.

Funding external reconciliation discrepancies

4.15. CASS 6.5.10R requires a firm to correct promptly any discrepancies identified by

external and/or internal reconciliations and make good, or provide the equivalent

of, any unreconciled shortfall for which there are reasonable grounds for

concluding that the firm is responsible.

4.16. Prior to July 2012, the Firms did not have an entity-specific process in place for

identifying external reconciliation discrepancies for which the Firms were

responsible. As a result, the Firms were unable to demonstrate compliance with

the requirements of CASS 6.5.10R.

Use of clients’ assets without consent

4.17. CASS 6.4.1(1)R prohibits a firm from using custody assets held on behalf of one

client for the account of another client of the firm unless the client has given

express prior consent to the use of the custody asset on specified terms and the

use of those assets is restricted to those terms.

4.18. On occasions, the Firms used clients’ custody assets held in omnibus accounts,

without the express prior consent of all clients whose assets were held in those

accounts, to settle a transaction before corresponding assets had been received

under a covering trade of the relevant client. This resulted in some clients’ assets

being used without consent to settle other clients’ trades. During most of the

Relevant Period, the Firms did not have in place systems and controls that could

identify the number of instances of this failure.

Failure to segregate

4.19. CASS 6.3.1(2)R requires a firm to take the necessary steps to ensure that any

client’s custody assets that are deposited with a third party are identifiable

separately to assets belonging to the firm and to the third party, by means of

differently-titled accounts on the books of the third party or other equivalent

measures that achieve the same level of protection.

4.20. Custody assets from 13 accounts, identified as proprietary assets on the Firms’

own records and accounts, were deposited into omnibus client accounts with

certain third parties, but were not identifiable separately to assets belonging to

clients in those third party accounts. This resulted in the commingling of Firm and

clients’ custody assets.

Organisational requirement failings

4.21. CASS 6.2.2R requires a firm to have adequate organisational arrangements to

minimise the risk of loss or diminution of clients’ safe custody assets, or the rights

in connection with those safe custody assets, as a result of the misuse of the safe

custody assets, fraud, poor administration, inadequate record-keeping or

negligence.

4.22. The Firms failed to implement CASS-specific governance arrangements until

2011. For example:

(1)
there were no committees that dealt specifically with CASS issues until

June 2011;

(2)
there were no accountability matrices for CASS roles and responsibilities

throughout the Relevant Period or job descriptions referring to CASS roles

and responsibilities until 2011;

(3)
Compliance did not perform a sufficiently proactive CASS role throughout

the Relevant Period; and

(4)
there was no CASS-specific remit for the Firms’ internal audit function until

2013.

4.23. Although prior to 2011 the Firms had some governance committees that included

CASS in their Terms of Reference, their consideration of CASS-specific issues was

on an ad hoc basis only. This was insufficient given the nature of the Firms’

business and the Firms’ failure to identify and remedy the issues outlined in this

Notice during the Relevant Period.

CASS resolution pack

4.24. Since 1 October 2012, CASS 10.1.3R requires a firm to maintain and be able to

retrieve a CASS resolution pack, the purpose of which is to ensure that a firm

maintains and is able to retrieve information that would, in the event of its

insolvency, assist an insolvency practitioner to achieve a timely return of custody

assets held by a firm to that firm’s clients.

4.25. As a result of failing to comply with the requirements of the Custody Rules, for

example by failing to maintain entity-specific records and accounts, the Firms’

CASS resolution packs were inadequate for ten months of the Relevant Period

(from 1 October 2012 when the requirement to maintain CASS resolution pack

came into force). Had the Firms complied with the requirement to maintain and

be able to retrieve an adequate CASS resolution pack, they would have been able

to provide a more comprehensive record against which the Insolvency Practitioner

could compare other information sources held by the Firms.

Client Money and Assets Return (“CMAR”)

4.26. Since 1 October 2011, SUP 16.14.3R(1) requires a firm to submit a monthly

CMAR within 15 business days of the end of each month, containing the

information prescribed in the Authority’s Handbook.

4.27. As the Firms’ global custody platforms did not record the legal entity with which

clients contracted or perform entity-specific reconciliations, the monthly CMARs

submitted by the Firms to the Authority from October 2011 to August 2013 were

incomplete and inaccurate in these respects.

Training

4.28. The Firms failed to ensure that those employees with operational or oversight

responsibility for custody assets received CASS-specific training until March 2012,

when the Firms provided CASS-specific training for the first time.

Identification of the issues

4.29. In January 2010, the Authority published on its website a Client Money & Asset

report noting that the Authority considered compliance with the Custody Rules to

be poor across the financial services industry. In particular, the key issues

identified by the report included:

(1)
the importance of implementing adequate arrangements to prevent the

firm using a client’s custody assets in the absence of express client

consent to do so; and

(2)
the importance of carrying out reconciliations to ensure that custody

assets are appropriately segregated.

4.30. The Authority’s Client Money & Asset report should have prompted the Firms to

conduct a review of their custody asset compliance that identified the above

issues, particularly because of the centrality of custody assets to their businesses

and the substantial value of custody assets held for clients.

4.31. In the second quarter of 2012, the Authority visited the Firms to review the Firms’

application of the banking exemption under the Client Money Rules. During the

visit the Authority identified issues relating to the Firms’ compliance with the

Custody Rules. These issues were confirmed to the Firms in a letter of 2 July

2012, which included the following concerns:

(1)
the use of one client’s assets to settle the transaction of another client

without the express consent of the client whose assets are being used, in

relation to which the Firms confirmed that they did not know how many

custody contracts provided the firm with express consent to use one

client’s assets in the settlement of another client’s transaction; and

(2)
the lack of reporting of stock reconciling items in Section 7 of the CMAR for

both BNYMLB and BNYMIL. The reconciliation process adopted by the Firms

did not appear to allow them to identify reconciling items by client, as a

result of which the Authority was concerned that assets belonging to

clients could be lost.

4.32. In August 2012, the Firms notified the Authority that they intended to appoint an

external regulatory adviser to undertake a wider review of their CASS compliance

framework (“the Wider CASS Review”) to ensure that the framework was being

applied appropriately. During August and September 2012, the Firms, in

conjunction with the external regulatory adviser, scoped the Wider CASS Review,

which they shared with the Authority. The scope of that review included ensuring:

(1)
completeness and accuracy of the books and records of BNYMLB and

BNYMIL for the purposes of the CASS Framework;

(2)
adequate legal entity record keeping and reconciliations controls are in

place to correctly reflect client transactions in the relevant systems, books

and records of the respective legal entities; and

(3)
that reconciliation discrepancies are appropriately considered and treated

for CASS purposes at the legal entity level.

4.33. In October 2012, as part of an on-site risk assessment (including an assessment

of the Firms’ compliance with CASS), the Authority identified further CASS

failings. These failings were set out in a Risk Assessment letter and Risk

Mitigation Programme sent to the Firms in February 2013. The review identified

“significant failures” in the Firms’ CASS regime, including examples which the

Firms should have identified and mitigated without the need for the Authority’s

involvement. The review found that the underlying cause of these failings

appeared to be insufficient consideration by the Firms of their UK-specific

regulatory obligations in implementing a global, rather than entity-specific,

approach to custody asset management.

4.34. In May 2013, the findings of the Firms’ external regulatory adviser’s Wider CASS

Review were reported voluntarily to the Authority. These findings included:

(1)
the BNY Mellon Group’s global operating model “creates a level of

complexity for the Firms in the execution of their respective CASS

obligations”;

(2)
“the Firms’ CASS Governance Framework was limited and requires

significant considerable enhancement in order to provide comprehensive

and effective governance and operational oversight over the Firms’ CASS

compliance”; and

(3)
“Based on our assessment of the Firms’ CASS related processes and

controls that fall within the scope of this Report, we have identified a

number of issues which we recommend that management should

remediate in order to mitigate CASS related risks”.

4.35. In June 2013, the Authority required the Firms to provide a Skilled Person’s

report under section 166 of the Act. The Firms appointed two Skilled Persons

concurrently. On 12 August 2013, the Skilled Persons issued their report, which

expanded on the issues identified previously by the Authority and the Firms’

regulatory advisers in the Wider CASS Review. The findings included:

(1)
failure to identify in records and accounts the legal entity with which

clients contract (as required by the Custody Rules);

(2)
external reconciliations were only being conducted between the global BNY

Mellon Group records and accounts and those of non-affiliate sub-

custodians, when they should have been conducted between BNY Mellon

Group entities and between BNY Mellon Group entities and non-affiliate

sub-custodians;

(3)
in the case of some clients who had contracted with BNYMLB to hold

physical custody assets, external reconciliations were only carried out

between the BNY Mellon Group’s records and accounts and those of non-

affiliate sub-custodians and only every 18 to 24 months, rather than (1) on

an entity-specific level and (2) every six months;

(4)
as of 28 March 2013, the Firms had no formal procedure to consider

funding external reconciliation discrepancies as per CASS 6.5.10R; and

(5)
on occasions used clients’ assets held in omnibus accounts, without the

express prior consent of all clients whose assets were held in those

accounts, to settle a transaction before corresponding assets had been

received under a covering trade of the relevant client. This resulted in

some clients’ assets being used without consent to settle other clients’

trades.

4.36. The issues identified by the Wider CASS Review and the Skilled Persons’ report

should have been identified by the Firms at an earlier stage through their own

monitoring and review of their custody asset compliance regime, particularly

because of the centrality of custody assets to their businesses and the substantial

value of custody assets held for clients.

4.37. In April 2014, the Firms notified the Authority of an issue with the Firms’

segregation of custody assets, which had not previously been identified.

5.
FAILINGS

5.1.
Based on the facts and matters described above, the Authority has concluded that

the Firms have breached Principle 10 and associated Custody Rules. The

regulatory provisions relevant to this Final Notice are referred to in Annex A.

5.2.
Principle 10 requires a firm to arrange adequate protection for clients’ assets for

which it is responsible. The CASS Rules set out detailed requirements placed on

firms to assist in ensuring that such adequate protection is in place for custody

assets. The Authority has concluded that the Firms failed to arrange adequate

protection for the custody assets for which they were responsible.

5.3.
The Firms:

(1)
failed
to
implement
adequate
organisational
arrangements
for

safeguarding client assets, as a result of the failings set out in this Notice;

(2)
maintained records and accounts on a global, rather than entity-specific

level and in that respect failed to meet the requirements of CASS 6.5.2R;

(3)
failed to conduct external reconciliations between the Firms’ records and

accounts and those of affiliate group companies which the Firms appointed

as sub-custodians. Where the Firms appointed non-affiliate third parties as

sub-custodians, they also failed to conduct separate, entity-specific

reconciliations with the accounts and records of the non-affiliate third party

sub-custodians
(instead
performing
external
reconciliations
on
an

enterprise-wide basis only);

(4)
failed to have an entity-specific process in place prior to July 2012 to

identify reconciliation discrepancies for which the Firms were responsible,

as a result of which the Firms were unable to demonstrate compliance with

the requirements of CASS 6.5.10R;

(5)
failed to take the necessary steps to ensure that assets from 13 accounts,

identified as proprietary assets by the Firms’ own records and accounts,

which were deposited into client omnibus accounts with certain third

parties were identifiable separately to assets belonging to clients in those

third party accounts. This resulted in the commingling of Firm and clients’

custody assets;

(6)
on occasions used clients’ assets held in omnibus accounts, without the

express prior consent of all clients whose assets were held in those

accounts, to settle a transaction before corresponding assets had been

received under a covering trade of the relevant client. This resulted in

some clients’ assets being used without consent to settle other clients’

trades. During most of the Relevant Period, the Firms did not have in place

systems and controls that could identify the number of instances of this

failure;

(7)
failed to implement CASS-specific governance arrangements, such as

committees that dealt specifically with CASS issues or accountability

matrices for or job descriptions referring to CASS roles and responsibilities,

until 2011. Although the Firms had some governance committees that

included CASS in their Terms of Reference prior to this date, their

consideration of CASS-specific issues was on an ad hoc basis only. This

was insufficient given the nature of the Firms’ business and the Firms’

failure to identify and remedy the issues outlined in this Notice during the

Relevant Period;

(8)
failed to provide CASS-specific training to employees with operational or

oversight responsibility for custody assets until March 2012; and

(9)
as a result of failing to comply with the requirements of the Custody Rules,

the Firms’ CASS resolution packs were inadequate (from 1 October 2012

when the requirement to maintain a CASS resolution pack came into

force). CASS resolution packs are important as they can assist an

insolvency practitioner in achieving a timely return of custody assets in the

event of insolvency.

5.4.
The Firms’ use of global custody platforms which, during the Relevant Period, did

not record with which BNY Mellon Group entity clients had contracted, caused

several of the Firms’ failings. For example, the Firms’ failure to maintain books

and records on an entity-specific basis meant that the Firms were unable to fulfil

their obligations to:

(1)
maintain entity-specific records and accounts, which meant that the Firms’

records and accounts failed to meet the requirements of CASS 6.5.2R;

(2)
conduct entity-specific reconciliations between the Firms’ records and

accounts and those of affiliate group companies which the Firms appointed

as sub-custodians or to conduct entity-specific external reconciliations with

the accounts and records of non-affiliate third party sub-custodians by

whom client assets were held (instead performing external reconciliations

on an enterprise-wide basis only);

(3)
maintain an adequate CASS resolution pack (from 1 October 2012 when

the requirement to do so came into force) that would have assisted an

insolvency practitioner in achieving a timely return of custody assets in the

event of BNYMLB’s and/or BNYMIL’s insolvency; and

(4)
submit accurate Client Money and Assets Returns (“CMAR”) from October

2011 (when the requirement to do so came into force) until the end of the

Relevant Period.

5.5.
As a consequence of these failures, the Authority has concluded that the Firms

failed to arrange adequate protection for the custody assets for which they were

responsible as required by the Custody Rules.

5.6.
Having regard to the issues above, the Authority considers it is appropriate and

proportionate in all the circumstances to take disciplinary action against the Firms

for their breaches of Principle 10 and associated Custody Rules over the Relevant

Period.

6.
SANCTION

6.1.
The Authority has considered the disciplinary and other options available to it and

has concluded that a financial penalty is the appropriate sanction in the

circumstances of this particular case.

6.2.
The FCA’s policy on the imposition of financial penalties is set out in Chapter 6 of

the Authority’s Decision Procedure & Penalties Manual (“DEPP”). In determining

the financial penalty, the Authority has had regard to this guidance.

6.3.
The principal purpose of a financial penalty is to promote high standards of

regulatory conduct by deterring firms that have breached regulatory requirements

from committing further contraventions, helping to deter other firms from

committing contraventions and demonstrating generally to firms the benefits of

compliant behaviour.

6.4.
For the reasons set out above, the Authority has concluded that the Firms failed

to comply with Principle 10 and breached associated Custody Rules. In

determining that a financial penalty is appropriate and proportionate in this case,

the Authority has considered all the relevant circumstances.

6.5.
The conduct at issue took place both before and after 6 March 2010. As set out at

paragraph 2.7 of the Authority’s Policy Statement 10/4, when calculating a

financial penalty where the conduct straddles both penalty regimes, the Authority

must have regard to both the penalty regime that was effective before 6 March

2010 (the “old penalty regime”) and the penalty regime that was effective from 6

March 2010 onwards (the “current penalty regime”).

6.6.
The Authority has therefore:

(1)
calculated the financial penalty for the Firms’ misconduct from 1 November

2007 to 5 March 2010 by applying the old penalty regime to that

misconduct;

(2)
calculated the financial penalty for the Firms’ misconduct from 6 March

2010 to 12 August 2013 by applying the current penalty regime to that

misconduct; and

(3)
added the penalties calculated under (1) and (2) to produce the total

penalty.

Financial penalty under the old penalty regime

Deterrence (DEPP 6.5.2G(1))

6.7.
The Authority views compliance with the Custody Rules to be of significant

importance. The Authority considers there to be a continuing need to send a

strong message to the Firms and to the industry that firms must handle custody

assets in a way that is consistent with the Principles and Custody Rules.

6.8.
The principal objectives of the Custody Rules to which this Notice relates are to

ensure that custody assets are clearly identified as such and are ring-fenced from

the Firms’ assets in the case of insolvency.

6.9.
Failure to organise properly custody asset affairs and to ensure adequate

protections are in place increases the risk that, in the event of insolvency,

delivery up of custody assets will be delayed and that the assets properly owing

to clients will be diminished.

6.10. The Authority considers that a significant financial penalty is an appropriate

sanction given the serious nature of the breaches and the risk to the Firms’

clients’ assets, identified in paragraph 2.5 above.

Nature, seriousness and impact of the breach (DEPP 6.5.2(2))

6.11. The Authority considers the Firms’ breach of Principle 10 and associated Custody

Rules to be serious for the following reasons:

(1)
the provision of custody services is the Firms’ core business and the

requirements of the Custody Rules should therefore have been central to

their compliance regime throughout the Relevant Period;

(2)
The BNY Mellon Group, of which the Firms are a part, is the world’s largest

global custody bank by custody assets. An insolvency of the size and

complexity of BNYMLB and/or BNYMIL’s would have had a severe impact

on the UK market. Had the Firms complied with the requirements of the

Custody Rules, their wind-down would have been carried out in the most

orderly manner possible and in a way that would have reduced the risks

identified in paragraph 2.5. As a result of the Firms’ misconduct, the total

value of custody assets at risk of being impacted to some degree in the

manner discussed above was significant. The custody asset balances held

by BNYMLB and BNYMIL increased significantly over the course of the

Relevant Period and peaked at approximately £1.3 trillion and £236 billion

respectively. Whilst the extent of any financial impact of the breaches on

clients is uncertain, any breach that exposes clients to additional risk of

being impacted is unacceptable;

(3)
given the systemically important nature of the Firms and the fact that

custody assets were central to the Firms’ business, it was particularly

important that they comply with the Custody Rules, a matter entirely

within their control. It is particularly serious in this context that the Firms

failed to comply with the fundamental requirement that their accounts and

records be maintained on an entity-specific basis;

(4)
a number of the Firms’ failings were failings of the Firms as a whole

(rather than incidences isolated by business line or account), indicating

that the Firms’ compliance with the Custody Rules was seriously

inadequate;

(5)
a number of the breaches of the Custody Rules took place, undetected,

throughout the Relevant Period (a period of five years and nine months);

(6)
the failings took place during a period when there was significant stress

within the market, meaning that the Firms should have had heightened

regard to the requirements of the Custody Rules;

(7)
all of the Firms’ failings, except for the one identified in April 2014, were

drawn to the Firms’ attention by the Authority, the Firms working with an

external regulatory adviser (appointed by the Firms one year before the

end of the Relevant Period and following the Authority’s CASS visit of May

2012) and the Skilled Persons, rather than through their own compliance

monitoring; and

(8)
during the Relevant Period there was a high level of awareness in the

financial services industry of the importance of adequately protecting

custody assets. In particular, the Authority published a report in January

2010 highlighting concerns about custody asset failings.

The extent to which the breach was deliberate or reckless (DEPP
6.5.2(3))

6.12. The Authority does not consider that the Firms committed the breaches

deliberately or recklessly.

The size, financial resources and other circumstances of the firm (DEPP
6.5.2(5))

6.13. In deciding on the level of penalty, the Authority has had regard to the size of the

financial resources of the Firms.

6.14. The Authority has no evidence to suggest that the Firms are unable to pay the

financial penalty.

The amount of profits accrued or the loss avoided (DEPP 6.5.2(6))

6.15. The Authority has not identified any financial benefit or avoidance of loss that the

Firms may have derived directly or indirectly from its breaches.

Conduct following the breach (DEPP 6.5.2(8))

6.16. For most of the Relevant Period, the Firms failed to identify or act upon the

failings set out in this Notice.

6.17. Following the Authority’s CASS visit in May 2012, the Firms took steps to consider

and resolve the issues identified. Since that time, the Firms have committed

significant resources to reviewing their arrangements for compliance with the

Custody Rules and to remediating the issues referred to in this Notice.

Disciplinary record and compliance history (DEPP 6.5.2(9))

6.18. The Firms have not previously been the subject of an adverse finding by the

Authority.

Other action taken by the Authority (DEPP 6.5.2(10))

6.19. The Authority has had regard to the previous case that the Authority has brought

under the old penalty regime for failure to protect adequately custody assets.

Conclusions in relation to the old penalty regime

6.20. The Authority considers that the seriousness of the Firms’ failings merits a

financial penalty. In determining the financial penalty, the Authority has

considered the need to send a clear message to the Firms and the wider industry

of the necessity of ensuring that custody assets are properly protected in

accordance with the Custody Rules. Failure to ensure that appropriate measures

are in place to protect custody assets will result in serious consequences.

6.21. The Authority therefore imposes a total financial penalty under the old penalty

regime of £25,200,000 (£36,000,000 before application of a 30% settlement

discount at Stage 1) on the Firms for their breach of Principle 10 and associated

Custody Rules failings over the Relevant Period. To obtain this figure, the

Authority has taken 0.2% of the average value of safe custody assets held by the

Firms over the Relevant Period (as per previous cases brought by the Authority

for breaches of the CASS Rules), made an adjustment to take into account that

28 out of 69 months of the Relevant Period were before 6 March 2010 and thus

fell to be considered under the old penalty regime, and made a further

adjustment to ensure that the level of financial penalty is in proportion to the

breach concerned.

Financial penalty under the current penalty regime

6.22. All references to DEPP from this section are references to the version of DEPP

implemented as of 6 March 2010 and currently in force. Under the current penalty

regime, the Authority applies a five-step framework to determine the appropriate

level of financial penalty. DEPP 6.5A sets out the details of the five-step

framework that applies to financial penalties imposed on firms.

Step 1: disgorgement

6.23. DEPP 6.5A.1G provides that at Step 1, the Authority will deprive a firm of the

financial benefit derived directly from the breach.

6.24. The Authority has not identified any financial benefit that the Firms derived as a

result of the breaches. The Step 1 figure is therefore £0.

Step 2: the seriousness of the breach

6.25. DEPP 6.5A.2G(1) provides that at Step 2 the Authority determines a figure that

reflects the seriousness of the breach. Although DEPP 6.5A.2G(1) indicates that in

many cases the amount of revenue generated by a firm from a particular

business area is indicative of the harm that the breach may cause, it also

recognises that revenue may not be an appropriate indicator of the harm the

breach may cause. In those cases the Authority will use an appropriate

alternative.

6.26. The Authority considers that the revenue generated by the Firms is not an

appropriate indicator of the harm or potential harm caused by their breaches in

this case. This is because their revenue is not related directly to the value of the

custody assets they are holding (and therefore the associated risks) being directly

affected.

6.27. The Authority usually considers that the appropriate indicator in a custody asset

case is the average value of custody assets held over the Relevant Period. The

Authority has therefore used the Firms’ average custody asset balance over the

Relevant Period to determine the figure at Step 2.

6.28. In deciding on the percentage of the custody asset value that forms the basis of

the step 2 figure, the Authority considers the seriousness of the breach and

chooses a percentage between 0% and 0.8%. This range is divided into five fixed

levels, which increase with the seriousness of the breach. The five levels are:

Level 1 – 0%;

Level 2 – 0.2%;

Level 3 – 0.4%;

Level 4 – 0.6%; and

Level 5 – 0.8%.

6.29. DEPP 6.5A.2G(11) lists factors likely to be considered ‘level 4 factors’ or ‘level 5

factors’. The following factors are relevant to the Authority’s assessment:

(1)
risk of loss or delay in return of assets to clients: had the Firms complied

with the Custody Rules, they would have, in the event of the insolvency of

BNYMLB and/or BNYMIL at any point during the Relevant Period, been able

to provide entity-specific accounts and records to the Insolvency

Practitioner, which would have provided a record against which the

Insolvency Practitioner could compare other information sources held by

the Firms. This would have reduced complexity and the risks identified in

paragraph 2.5 above in attempting to return assets to customers in an

already complex insolvency situation;

(2)
detrimental impact on CASS resolution pack (from 1 October 2012): had

the Firms complied with the requirement to maintain and be able to

retrieve an adequate CASS resolution pack, they would have been able to

provide a more comprehensive record against which the Insolvency

Practitioner could compare other information sources held by the Firms;

and

(3)
widespread weaknesses in systems and controls: a number of the Firms’

failings were failings of the Firms as a whole (rather than incidences

isolated by business line or accounts), indicating that the Firms’

compliance with the Custody Rules was seriously inadequate.

6.30. The Authority also considers that the following factors are relevant:

(1)
the failings took place during a period when there was significant stress

within the market, meaning that the Firms should have had heightened

regard to the requirements of the Custody Rules;

(2)
most of the breaches continued for 41 months after the current penalty

policy was introduced, having already been continuing for 28 months

before this time; and

(3)
the Firms failed to identify that they were not compliant with the Custody

Rules until one year before the end of the Relevant Period (a period of five

years and nine months), when they commenced working with an external

regulatory adviser.

6.31. The Authority has taken these factors into account and considers the overall

seriousness of the breach to be level 4. The relevant percentage of the relevant

custody asset value is therefore 0.6%.

6.32. DEPP 6.5.3(3)G provides that the Authority may decrease the level of penalty

arrived at after applying Step 2 of the framework if it considers that the penalty is

disproportionately high for the breach concerned. Notwithstanding the serious and

long-running nature of the breaches, the Authority considers that the level of

penalty in respect of the current penalty regime would nonetheless be

disproportionate if it were not reduced (because of the size of the relevant

custody asset balance) and should be adjusted.

6.33. In order to achieve a penalty that (at Step 2) is proportionate to the breach, and

having taken into account previous cases, the Step 2 figure is therefore reduced

to £125,217,400.

Step 3: mitigating and aggravating factors

6.34. DEPP 6.5A.3G provides that at Step 3 the Authority may increase or decrease the

amount of the financial penalty arrived at after Step 2 to take into account factors

which aggravate or mitigate the breach.

6.35. The Authority considers that the following factors aggravate the breach:

(1)
the importance of arranging adequate protection for clients’ custody assets

was well publicised by the Authority during the Relevant Period, including

through previous enforcement actions for breaches of the Custody Rules

and related Client Money Rules, which have drawn firms’ attention to the

need for increased focus on this area (and specifically the importance of

protecting client money and custody assets); and

(2)
the Firms failed to identify that they were not compliant with the Custody

Rules until one year prior to the end of the Relevant Period (a period of

five years and nine months), when they commenced working with an

external regulatory adviser. All of the Firms’ failings, except for one

identified in April 2014 (which date fell after the end of the Relevant

Period), were drawn to the Firms’ attention by the Authority, the Firms

working with the external regulatory adviser (appointed by the Firms one

year before the end of the Relevant Period and following the Authority’s

CASS visit of May 2012) and the Skilled Persons, rather than through their

own compliance monitoring.

6.36. The Authority considers that the following factor mitigates the breach:

(1)
once the Firms had identified that they were not compliant with the

Custody Rules, one year before the end of the Relevant Period (a period of

five years and nine months), they committed significant resources to

reviewing their arrangements for compliance with the Custody Rules and

to addressing the issues referred to in this Notice.

6.37. The Authority has considered the various aggravating and mitigating factors and

having done so has decided that the Step 2 figure should be subject to a 15%

uplift at Step 3.

6.38. The Step 3 figure is therefore £144,000,010.

Step 4: adjustment for deterrence.

6.39. DEPP 6.5A.4G provides that if the Authority considers that the Step 3 figure is

insufficient to deter the firm who committed the breach, or others, from

committing further or similar breaches, the Authority may increase the penalty.

6.40. There are no relevant factors that justify a change to the Step 3 figure. The

figure at Step 4 remains £144,000,010.

Step 5: settlement discount

6.41. Pursuant to DEPP 6.5A.5G, if the Authority and the firm on whom a penalty is to

be imposed agree the amount of the financial penalty and other terms, DEPP 6.7

provides that the amount of the financial penalty which might otherwise have

been payable will be reduced to reflect the stage at which the Authority and the

firm reached agreement.

6.42. The Firms have agreed to settle at Stage 1 and therefore qualify for a 30%

discount to the current regime financial penalty. The Step 5 figure is therefore

£100,800,000 (rounded down to the nearest £100).

Conclusion on financial penalty

6.43. The Authority therefore imposes on the Firms a total financial penalty of

£126,000,000 (£180,000,000 before Stage 1 discount).

7.
PROCEDURAL MATTERS

Decision maker

7.1.
The decision which gave rise to the obligation to give this Notice was made by the

Settlement Decision Makers.

7.2.
This Final Notice is given under, and in accordance with, section 390 of the Act.

Manner of and time for Payment

7.3.
The financial penalty must be paid in full by the Firms to the Authority by no later

than 28 April 2015, 14 days from the date of the Final Notice.

If the financial penalty is not paid

7.4.
If all or any of the financial penalty is outstanding on 29 April 2015, the Authority

may recover the outstanding amount as a debt owed by the Firms and due to the

Authority.

7.5.
Sections 391(4), 391(6) and 391(7) of the Act apply to the publication of

information about the matter to which this Notice relates. Under those provisions,

the Authority must publish such information about the matter to which this Notice

relates as the Authority considers appropriate. The information may be published

in such manner as the Authority considers appropriate. However, the Authority

may not publish information if such publication would, in the opinion of the

Authority, be unfair to you or prejudicial to the interests of consumers or

detrimental to the stability of the UK financial system.

7.6.
The Authority intends to publish such information about the matter to which this

Final Notice relates as it considers appropriate.

Authority contacts

7.7.
For more information concerning this matter generally, contact Alexandra

Stableforth or Matthew Finn of the Enforcement and Market Oversight Division of

the Authority (direct lines: 020 7066 5866 / 020 7066 1276).

Financial Conduct Authority, Enforcement and Market Oversight Division

ANNEX A

1.
RELEVANT STATUTORY PROVISIONS

1.1.
Pursuant to sections 1B(1) and 1C(1) of the Act, one of the Authority’s

operational objectives is to secure an appropriate degree of protection for

consumers.

1.2.
The Authority is authorised, pursuant to section 206 of the Act, if it considers that

an authorised person has contravened a requirement imposed on it by or under

FSMA, to impose on such person a penalty in respect of the contravention of such

amount as it considers appropriate in the circumstances.

2.
RELEVANT REGULATORY PROVISIONS

Principles for Businesses (“Principles”)

2.1.
The Principles are a general statement of the fundamental obligations of firms

under the regulatory system and are set out in the Authority’s Handbook. They

derive their authority from the Authority’s rule-making powers set out in the Act.

The relevant Principle is as follows:

2.2.
Principle 10 (clients’ assets) states that:

“A firm must arrange adequate protection for clients’ assets when it is responsible
for them.”

Client Assets sourcebook (“The CASS Rules”)

2.3.
The CASS Rules are the part of the Authority’s Handbook that sets out the

Authority’s requirements in relation to holding client assets and client money.

2.4.
CASS 6.5.10R, in force throughout the Relevant Period, stated that:

“A firm must promptly correct any discrepancies which are revealed in the
reconciliations envisaged by this section, and make good, or provide the
equivalent of, any unreconciled shortfall for which there are reasonable grounds
for concluding that the firm is responsible.”

2.5.
In respect of all the rules and guidance within CASS 6 set out below:

(1)
they were in force throughout the Relevant Period unless otherwise made

clear; and

(2)
where they now refer to “safe custody assets”, before 1 January 2009 they

referred to “financial instruments”. Both terms are defined in the

Authority’s Handbook, but the Authority does not consider the differences

between the definitions to be material in the current case.

2.6.
CASS 6.2.2R stated that:

“A firm must introduce adequate organisational arrangements to minimise the
risk of the loss or diminution of clients' safe custody assets, or the rights in
connection with those safe custody assets, as a result of the misuse of the safe
custody assets, fraud, poor administration, inadequate record-keeping or
negligence.”

2.7.
CASS 6.3.1(2)R stated that:

“A firm must take the necessary steps to ensure that any client's safe custody
assets deposited with a third party, in accordance with this rule are identifiable
separately from the applicable assets belonging to the firm and from the
applicable assets belonging to that third party, by means of differently titled
accounts on the books of the third party or other equivalent measures that
achieve the same level of protection.”

2.8.
CASS 6.4.1(1)R stated that:

“A firm must not enter into arrangements for securities financing transactions in
respect of safe custody assets held by it on behalf of a client or otherwise use
such safe custody assets for its own account or the account of another client of
the firm, unless:

(a) the client has given express prior consent to the use of the safe custody
assets on specified terms; and

(b) the use of that client's safe custody assets is restricted to the specified terms
to which the client consents.”

2.9.
CASS 6.5.2R stated that:

“A firm must maintain its records and accounts in a way that ensures their
accuracy, and in particular their correspondence to the safe custody assets held
for clients.”

2.10. CASS 6.5.6R stated that:

“A firm must conduct on a regular basis, reconciliations between its internal
accounts and records and those of any third parties by whom those safe custody
assets are held.”

2.11. Additionally, from 1 October 2012, CASS 10.1.3R stated that:

“A firm falling within CASS 10.1.1R must maintain and be able to retrieve, in the
manner described in this chapter, a CASS resolution pack.”

2.12. From 1 October 2012, CASS 10.3.1R stated that:

“A firm must include, as applicable, within its CASS resolution pack the records
required under:

(1) CASS 6.3.1R (4) (safe custody assets: appropriateness of the firm's selection
of a third party);

(2) CASS 6.4.3R (firm's use of safe custody assets);

(3) CASS 6.5.1R (safe custody assets held for each client), including internal
reconciliations carried out pursuant to CASS 6.5.2R as explained in the guidance
at CASS 6.5.4G;

(4) CASS 6.5.2AR (client agreements: firm's right to use);

(5) CASS 6.5.6 R (Reconciliations with external records);

(6) CASS 7.4.10R (client money: appropriateness of the firm's selection of a third
party);

(7) CASS 7.6.1R (client money held for each client), including internal
reconciliations carried out pursuant to CASS 7.6.2R as explained in the guidance
at CASS 7.6.6G;

(8) CASS 7.6.7R and CASS 7.6.8R (method of internal reconciliation of client
money balances);

(9) CASS 7.6.9R (Reconciliations with external records);

(10) COBS 3.8.2R(2)(a) and COBS 3.8.2R(2)(c) (client categorisation); and

(11) COBS 8.1.4R (retail and professional client agreements).”

Supervision Manual (“SUP”)

2.13. SUP is the part of the Authority’s Handbook that sets out the Authority’s

requirements for the relationship between the Authority and authorised firms and

their supervision by the Authority.

2.14. From 1 October 2011 to 31 December 2012, SUP 16.14.3(R)(1) stated that:

“A firm must submit a completed CMAR to the FSA within 15 business days of the
end of each month.”

2.15. From 1 January 2013 to 12 August 2013, SUP 16.14.3(R)(1) stated that:

“Subject to (3), a firm must submit a completed CMAR to the FCA within 15
business days of the end of each month.”

Decision Procedure and Penalties Manual (“DEPP”)

2.16. Chapter 6 of DEPP, which forms part of the Authority’s Handbook, sets out the

Authority’s statement of policy with respect to the imposition and amount of

financial penalties under the Act.

The Enforcement Guide

2.17. The Enforcement Guide sets out the Authority’s approach to exercising its main

enforcement powers under the Act.

2.18. Chapter 7 of the Enforcement Guide sets out the Authority’s approach to

exercising its power to impose a financial penalty.