David Yeres is senior counsel, and David DiBari and Robert Houck are partners at Clifford Chance US LLP. This post is based on a Clifford Chance memorandum by Mr. Yeres, Mr. DiBari, Mr. Houck, Brendan Stuart and Ben Peacock.
On March 6, 2019, the Enforcement Division of the U.S. Commodity Futures Trading Commission (“CFTC” or the “Commission”) issued an Enforcement Advisory applicable to non-registered companies and individuals regarding its cooperation and self-reporting program specifically relating to violations of the Commodity Exchange Act (“CEA”) that involve foreign corrupt practices (the “CFTC Foreign Corrupt Practices Advisory” or the “Advisory”). [1] The CFTC Foreign Corrupt Practices Advisory indicates a potential new front of the CFTC’s enforcement program based on a novel application of the CEA. In recent remarks, the CFTC’s Division of Enforcement Director has indicated that the Commission may bring enforcement actions in cases involving foreign corrupt practices under CEA provisions that are analogous to those contained in statutes enforced by the U.S. Securities and Exchange Commission (“SEC”). [2] In addition, the Advisory builds upon and incorporates the CFTC’s January 2017 and September 2017 Enforcement Advisories, which promised meaningful reductions in penalties where a company or individual self-reports, fully cooperates, and takes remedial measures (see our January 2017 and September 2017 client briefings). And in keeping with the CFTC’s stated desire to harmonize its enforcement regime with those of authorities holding concurrent jurisdiction, the Advisory echoes guidance that the U.S. Department of Justice (“DOJ”) published in its November 2017 FCPA Corporate Enforcement Policy. [3]
