March 6, 2019

CFTC issues a new Enforcement Advisory covering foreign corrupt practices

The Division of Enforcement of the Commodity Futures Trading Commission has issued an advisory on self-reporting and cooperation for violations of the Commodity Exchange Act (CEA) involving foreign corrupt practices.  The Advisory applies to companies and individuals who are not required to register with the CFTC.  It raises a presumption against civil monetary penalties for persons who timely and voluntarily disclose violations of the CEA involving foreign corrupt practices, if there are no aggravating circumstances, and if the disclosure is followed by full cooperation and appropriate remediation.  The Division of Enforcement would still require payment of disgorgement and restitution.  In remarks accompanying publication of the Enforcement Advisory, CFTC Director of Enforcement James M. McDonald explained that if foreign bribes are used to secure business connected with regulated activities like trading, advising, or dealing in swaps or derivatives, this could constitute fraud, manipulation, false reporting or other violations under the CEA.  He noted that the same conduct could be subject to prosecution under the Foreign Corrupt Practices Act, and promised close cooperation with the Securities and Exchange Commission and Department of Justice to coordinate investigations, without piling on enforcement actions and penalties.

CFTC Enforcement Advisory | CFTC press release

Remarks by CFTC Director of Enforcement