Capital One, National Association (“CONA,” “we,” “us” or “our”) is registered as a swap dealer with the Commodity Futures Trading Commission (“CFTC”) as of August 31, 2020. CFTC Regulation §23.431 requires that before a registered swap dealer enters into any “swap,” as defined in Section 1a(47) of the Commodity Exchange Act, as amended (the “CEA”) and CFTC Regulation §1.3 (a “Swap” or, alternatively, a “Transaction”) with someone other than another swap dealer, major swap participant, security-based swap dealer or major security-based swap participant (“you”), the registered swap dealer discloses to you certain material information, as defined by and in accordance with CFTC regulations, regarding the proposed Swap, sufficient for you to evaluate:
Accordingly, this website provides certain disclosures, in accordance with CFTC regulations applicable to swap dealers (“Material Information”), to you on or through this website, or websites of others, via one or more documents, URLs or hyperlinks specified herein.
If you will enter into or contemplate entering into a Swap with us and you are not a “swap dealer,” “major swap participant,” “security-based swap dealer” or “major security-based swap participant” (each as defined in the CEA or the regulations of the CFTC), we request that you carefully review all Material Information provided on this website prior to entering into any Swap with us.
The General Disclosure Statement for Transactions that appears on each asset class page, together with each Disclosure Annex relevant to a particular asset class, contains important information and disclosures about the associated material risks, characteristics, incentives and conflicts of interest. If a Swap has characteristics of more than one asset class, then you should read the General Disclosure Statement for Transactions together with each relevant Disclosure Annex. In addition please note that, CONA may provide you with additional disclosure statements for swap transactions to supplement or supersede the information provided herein, as well as transaction-specific disclosures in connection with particular transactions. Please review this website frequently for updates as the disclosures may change without notice to you.
Some of the disclosure documents are password protected and you will receive an email communication from CONA that contains the password. If you have not received this communication, please contact derivatives.onboarding@capitalone.com.
Prior to entering into any Swap that is not “available for trading” (as such term is defined in CFTC Regulations) on a designated contract market or swap execution facility, you can request in writing, and consult on the design of, a scenario analysis to allow you to assess your potential exposure in connection with such Swap.
We will, to the extent required by applicable law, provide the pre-trade mid-market mark of any prospective Swap between you and us pursuant to CFTC Regulation §23.431(a)(3)(i) as follows: If you have agreed to receive oral disclosure (with written confirmation to follow post-trade) of pre-trade mid-market marks of any Swaps, then we will provide such oral disclosure followed by written disclosure. If you have not agreed to receive such oral disclosure, then we will provide pre-trade mid-market marks of any proposed Swap in writing.
Note, however, to the extent the CFTC provides no-action or other relief from CFTC Regulation §23.431(a)(3) with respect to certain Swaps, we may not provide pre-trade mid-market marks in respect of such Swaps.
See Pre-Trade Mid-Market Marks for disclosure regarding terms of, and assumptions underlying, pre-trade mid-market marks.
To the extent that you post “Initial Margin” (as defined in CFTC Regulation 23.700) in respect to any uncleared swap with CONA, you have the right to elect that the initial margin be segregated in accordance with requirements set for in CFTC Regulation 23.702 and 23.703. For more information see CFTC Initial Margin Segregation Fact Sheet.
With respect to any Swap entered into between you and us that is subject to the mandatory clearing requirements under CEA Section §2(h), you have the sole right to select the DCO at which the Swap will be cleared.
With respect to any Swap that is not subject to the mandatory clearing requirements, you may elect to clear such Swap and you have the sole right to select the DCO at which the Swap will be cleared.
Upon acceptance of a Swap by a DCO: (a) the original Swap between you and us is extinguished, (b) the original Swap between you and us is replaced by equal and opposite Swaps with the DCO; and (c) all terms of the Swap shall conform to the product specifications of the cleared Swaps established under the DCO’s rules.
Please note that prior to entering into any Swap that will be cleared, you must (1) notify us in writing of your preference of the DCO on which the Swap may be cleared, and (2) have taken all necessary action on your part for the Swap to be submitted for clearing, including engaging an appropriate futures commission merchant. We may be unable to enter into any such Swap if we do not have clearing arrangements or capabilities with respect to that DCO or in that type of Swap.
You may be eligible for an exception to any clearing requirement. Please contact your CONA derivatives marketer for further information regarding eligibility for the exception to clearing and/or the legal and operational requirements necessary to clear a Swap.
As required by CFTC Regulation 23.431(d)(2), we will provide you with a daily mark for all uncleared Swaps subject to CFTC regulation via e-mail to the contact information provided by you during onboarding. Each daily mark is CONA’s estimate of the value of the swap under market conditions prevailing as of the close of business of the previous business day.
For cleared swaps, you have the right to receive the daily mark from the appropriate DCO. For a full understanding of our daily marks, please click on Daily Marks.
The External Business Conduct rules do not change the fundamental conflict of interest that is inherent in every Swap because a positive performance for one party will inevitably be a negative performance for the other party. Because of this unavoidable conflict of interest, communications from CONA with respect to Swaps are not, and should not be treated or relied upon as, or considered by you to be, investment advice or an offer, inducement, recommendation, suggestion or call for you to enter into any Swap.
Additional material conflicts of interest may arise between you and CONA in connection with Swaps that are subject to mandatory clearing. Under applicable law, including regulations of the CFTC, all such Swaps are required to be executed on an exchange or swap execution facility (each, a “Trading Facility”) if at least one Trading Facility makes such Swaps available to trade. In such circumstances, CONA or an affiliate may receive fees, discounts and/or other financial benefits if the Swap is executed on a Trading Facility in which CONA or an affiliate has an interest as a member, market-maker, equity owner, board member and/or some other form of interested party.
If more than one Trading Facility makes a cleared Swap available to trade, CONA may decline to execute the Swap unless it is executed on a Trading Facility preferred by CONA. Applicable law also permits an end-user counterparty to choose the CFTC-registered DCO to which a cleared Swap is submitted for clearing. CONA or an affiliate may receive fees, discounts and/or other financial benefits if the Swap is cleared at a DCO in which CONA or an affiliate has an interest as a member, market-maker, equity owner, board member and/or some other form of interested party.
CONA may decline to execute a Swap unless it will be cleared at a DCO preferred by CONA rather than one chosen by you. CONA may also decline to execute a Swap to be cleared at a DCO chosen by you if it does not have the ability to submit Swaps for clearing to that DCO.
Another potential conflict of interest with respect to Trading Facilities and DCOs in which CONA or an affiliate has an interest is that individual employees and officers of CONA or its affiliates may also serve on the board of directors or on one or more committees of such a Trading Facility or DCO and may consequently be able to influence policies and practices of the organization.
We may provide additional disclosures to supplement or supersede the Material Information provided on this website. Material Information owned or controlled by others, including International Swaps and Derivatives Association (ISDA), may likewise change from time to time on their websites or otherwise. Revisit this website and relevant web pages regularly to ensure that you have the most up-to-date information and disclosures before entering into each Swap.
Nothing herein or contained in any Material Information shall amend or supersede the express terms of any written or oral agreement between you and us, including any Swap confirmation or Swap trading relationship documentation.
Furnishing you with the Material Information made available on or through this website, or the website of another organization, shall not be construed as an offer or commitment to enter into any Swap. Furthermore, Material Information made available on or through this website, or the website of another organization, should not be considered advice or recommendations regarding any potential or existing Swap. In respect of each Swap, and all interactions between you and us regarding Swaps, we are acting in our capacity as a counterparty and are not undertaking to assess the suitability of any Swap or strategy involving a Swap for you. You must make your own, independent decision to enter into a Swap with us, and whether the Swap is suitable for you, based on your own judgment and the advice of any advisors you deem necessary.
Set forth below are the physical address, email, and telephone number of the department to which any complaints may be directed:
Department: Capital Markets Operations
Address: Capital One, National Association
299 Park Avenue, New York, NY 10171
Attn: Capital Markets Operations
Phone: 646-231-9001
Email: CapitalOneDerivativeComplaints@capitalone.com
Please note that materials from ISDA referred to herein are subject to the ISDA Copyrights and ISDA Disclaimer of Liability, which we are furnishing you via this ISDA Copyrights link.
If you do not feel that the Material Information displayed on or made available to you through our website allows you to assess the material risks, characteristics, conflicts of interest or incentives of a proposed Swap, or you have any questions regarding the Material Information, please contact your CONA derivatives marketer.