On July 9, 2025, the Commodity Futures Trading Commission’s Division of Enforcement (“DOE”) issued an enforcement advisory to provide the public with guidance as to how the DOE will assess whether to make a criminal referral to the Department of Justice. The guidance was issued in accordance with Executive Order 14294, Fighting Overcriminalization in Federal Regulations.
According to the advisory, DOE staff will consider the following factors, among others, when deciding whether to make a criminal referral:
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- The harm or risk of harm caused by the potential offense.
- The potential gain that an alleged defendant might obtain from the offense.
- Whether the alleged defendant had specialized knowledge, expertise, or an industry license related to the rule or regulation at issue.
- Evidence demonstrating that the alleged defendant was aware that his/her conduct was unlawful and had knowledge of the regulation at issue.
- Whether an alleged defendant is a repeat offender or has engaged in a pattern of misconduct.
- Whether the DOJ’s involvement will provide participants in the derivatives markets with additional meaningful protection.
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CFTC Press Release | CFTC Staff Letter No. 25-19