Newly Revealed CFTC Self-Reporting and Cooperation Regime Could Offer Benefits to Fund Managers, or Lead to Increased Enforcement

The CFTC’s stated mission is to “foster open, transparent, competitive and financially sound markets.” Essential to fulfilling that mission is vigorous enforcement by the regulator, and as CFTC Chair J. Christopher Giancarlo has made clear, the CFTC will not curtail its duty to enforce the law and punish wrongdoing. The CFTC Division of Enforcement (Division) has attempted to perform this duty by battling manipulation; prosecuting fraud in traditional markets and in new markets, such as virtual currencies; and fighting spoofing. See “Two Recent Settlements Demonstrate CFTC’s Continued Focus on Spoofing” (Oct. 12, 2017); and “Decision by U.S. Court of Appeals Sets Precedent for Emboldened Stance Toward Spoofing” (Sep. 7, 2017). Meanwhile, the Division has also aimed to find ways to deter misconduct. As noted by Division Director James McDonald in a recent speech to the NYU Program on Corporate Compliance & Enforcement, to achieve optimal deterrence, the Division needs the endorsement of fund managers and others it polices. To achieve that support, McDonald unveiled the CFTC’s new self-reporting and cooperation program. This article highlights the key points from McDonald’s speech and the mechanics of the new self-reporting regime. For analysis of self-reporting in another context, see “Self-Reporting and Remedying Improper Fee Allocations May Not Be Sufficient for Fund Managers to Avoid SEC Action” (Sep. 15, 2016).

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