CFTC’s demanding new cooperation guidelines for companies and individuals

Purpose To explain and analyze two Enforcement Advisories that set forth the factors the US Commodity Futures Trading Commission Division of Enforcement may consider in assessing cooperation by companies and individuals in the context of CFTC enforcement proceedings. Design/methodology/approach Explains the background, including the 2007 Enforcement Advisory for Companies. Explains the 2017 Enforcement Advisory for Companies and the parallel Enforcement Advisory for Individuals, including policy-based considerations and factors such as the materiality, timeliness, nature, and quality of a company’s cooperation; the value of a company’s cooperation to the Commission’s broader law enforcement interests; and the company’s culpability, culture and other relevant factors. Provides examples of uncooperative conduct. Discusses a broader trend among enforcement authorities in the US and abroad of setting higher cooperation standards. Findings The new Advisories make clear that merely complying with requests for information from the CFTC staff will not be sufficient; a company or individual seeking cooperation credit as part of a resolution with the CFTC must go above and beyond its legal obligations in order to qualify for such credit. Originality/value Practical guidance from experienced white collar defense, regulatory enforcement, civil litigation and arbitration lawyers.