In recent years, the Commodity Futures Trading Commission (“CFTC” or “Commission”) has brought cases of ever-greater significance, against respondents with greater name recognition, for consistently increasing civil monetary penalties. We expect these trends to continue despite budget or other resource constraints the Commission may face in 2014. The Commission will also seek to flex its new enforcement authority under the Dodd-Frank Wall Street Reform and Consumer Protection Act of 2010 (“Dodd-Frank” or "the Act").1 That being said, we do not expect the Commission to lessen its traditional focus on enforcement actions concerning market integrity. To the contrary, the Commission recently appointed a Division of Enforcement alumnus as Director of the Division of Market Oversight, suggesting that the Commission remains committed to aggressive market integrity oversight. Finally, as it completes Dodd-Frank implementation, the Commission will likely focus greater attention on market structure issues, including high frequency trading.
2013: Record Sanctions, Budget Challenges, and a Changing of the Guard
By October 2013, the Commission had assessed a record $1.7 billion in monetary sanctions, mainly from fines collected through LIBOR manipulation settlements.2 Thus, as of October, the Commission had collected more than eight times its reported 2013 total budget of roughly $200 million, far in excess of historical averages.3
However, the Commission commenced somewhat fewer enforcement actions in 2013 than in 2012, though the total remains at historically high levels.4 This trend mirrors slowdowns at other financial regulatory agencies.5 One reason may be budget constraints: Commission leaders and President Obama have criticized the CFTC’s budget as being far too low given the agency’s responsibility for regulating hundreds of trillions of dollars in transactions.6
These budget concerns as well as leadership turnover have created some uncertainty about the agency’s 2014 enforcement initiatives.7 In early January 2014, the CFTC received less than a 10% budget increase to $215 million—$100 million below President Obama’s request to lawmakers.8 Further, with the departure of Chairman Gary Gensler and the announced departure of Commissioner Bart Chilton, both of whom have been considered aggressive supporters of expanding the agency’s authority, there is, at this point, no clear indication of the Commission’s enforcement or regulatory priorities in 2014. While we expect that the Commission’s budget issues and personnel turnover may have a marginal effect on enforcement activity, we also expect the Commission to continue aggressively pursuing high-profile matters, including many in the fraud and manipulation space, possibly in coordination with other enforcement authorities. We have seen the signs of this continued enforcement activity in our own practice.
Enforcement’s Substantive Areas of Focus in 2013—A Look Back
In 2013, CFTC enforcement actions focused on several substantive areas, which we anticipate will remain in the spotlight in 2014. These include the following:
The CFTC’s most visible 2013 enforcement activity stemmed from widespread investigations into manipulation of benchmark interest rates by major financial institutions (e.g., LIBOR, EURIBOR). In its most recent such settlement, the CFTC ordered Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A. (“Rabobank”) to pay a $475 million civil monetary penalty to settle allegations that the bank submitted false information to manipulate the LIBOR and the EURIBOR.9 The Commission has pursued similar actions against several other major financial institutions and amassed penalties totaling more than $1 billion.10 Because of the public attention paid to these investigations, and the precedents set by the record penalties levied, we can expect CFTC Enforcement and other regulators to continue to aggressively pursue potential benchmark manipulation matters in 2014.11
Customer Funds Violations
As a result of the MF Global, Inc. and the Peregrine Financial Group, Inc. (“PFG”) episodes involving the loss of hundreds of millions of customer funds that had been held in segregated accounts, the CFTC has made increasing the protection of customer funds a top enforcement and regulatory priority. This increased enforcement priority was exhibited in 2013 in the high profile actions brought against MF Global, its CEO Jon Corzine and Assistant Treasurer Edith O’Brien, PFG, PFG’s owner, accountant, and bank.
Although MF Global has settled all charges against it,12 former CEO Corzine and Treasurer O’Brien are contesting the charges brought against them.13 As noted above, in the PFG matter,14 the CFTC also pursued separate enforcement actions against ancillary participants that had responsibilities with respect to customer funds, including PFG’s accountant and PFG’s bank, U.S. Bank National Association (“U.S. Bank”).15 Then-Enforcement Director David Meister stated regarding the U.S. Bank action, “[a]s should be apparent from today’s action, we will seek to hold a bank to account if it falls short on complying with customer fund protection obligations. Wasendorf stole vast sums of customer money, but his crimes do not excuse U.S. Bank from its own independent responsibilities.”16
In addition to these high-profile actions, the CFTC brought actions against more than a dozen Futures Commission Merchants for violating segregation, secured, and net capital rules and related supervision and reporting failures.17 The volume of these cases is instructive for market participants looking ahead to 2014—it is critical for all parties to relevant transactions to review internal processes and to take steps to ensure that conduct is consistent with anti-misappropriation controls and customer fund segregation requirements.
NewEnforcement Authority Under Dodd-Frank
Dodd-Frank ushered in sweeping expansions to the jurisdiction and enforcement powers of the CFTC.18 We expect to see continued focus on these areas as the agency exercises its new authority with new investigations and new theories of liability in 2014. Areas to watch include the agency’s expanded jurisdiction over market participants’ conduct (e.g., false statements, manipulation, and disruptive trading), the location of the conduct (e.g., cross-border activities and non-US market participants) and products (e.g., swaps and retail commodity transactions).
Dodd-Frank expanded the CFTC’s authority to pursue any false “statement of material fact made to the Commission in any context.”19 Under this new authority, the CFTC has assessed penalties for false statements: in written responses to CFTC Enforcement inquiries and in false reports to the National Futures Association (“NFA”);20 concerning customer segregated funds holdings in an NFA audit and in filings with the Commission;21 and in interviews during an enforcement investigation.22 CFTC Division of Enforcement Director Gretchen Lowe recently commented: “Witnesses in CFTC investigations must tell the truth. If they do not, the CFTC will not hesitate to take action to enforce [ ] Dodd-Frank’s prohibition against providing false or misleading information and impose sanctions.”23
Anti-Manipulation Authority—Rule 180.1
Section 753 of Dodd-Frank amended the Commodity Exchange Act § 6(c) to give the CFTC anti-manipulation enforcement authority similar to that of the SEC under § 10(b) of the Securities Exchange Act.24 In adopting Rule 180.1, which was in turn modeled after SEC Rule 10b-5, the Commission announced that it “will be guided, but not controlled, by the substantial body of judicial precedent applying the comparable language of SEC Rule 10b-5.”25
Rule 180.1 is quite broad, covering not only manipulation, but attempts to manipulate.26 The rule also reaches not only conduct in connection with a purchase or sale, but also prohibits deceptive devices or contrivances in connection with any swap, cash contract, or futures contract.27 Thus, the new rule applies to conduct or attempted conduct in connection with activities well beyond the purchase or sale of a covered instrument (e.g., all of the payment and other obligations under a swap). While the CFTC may use the new rule to pursue more types of fraud and manipulation actions, the similarity between the rules also provides respondents with a large body of precedent from which to draw arguments and potential defenses.
In connection with the CFTC’s announcement in October 2013 of an enforcement action under Rule 180.1, then-Enforcement Director Meister emphasized how the Commission is “now better armed than ever” with Rule 180.1, which he described as “a powerful new tool.”28
Ponzi Schemes: We can expect the CFTC to continue to pursue commodities-related Ponzi schemes under the new anti-fraud and anti-manipulation authority found in Rule 180.1. Relying on this new authority, the CFTC obtained a consent order requiring a $23 million civil monetary penalty and $11,530,000 of restitution to defrauded investors against Atlantic Bullion & Coin and its owner for operating a multi-million dollar silver bullion Ponzi scheme.29
Insider Trading: The CFTC in adopting Rule 180.1 stated that the Rule could reach insider trading “depending on the facts and circumstances.”30 While the CFTC was careful to recognize in the adopting release that derivative markets have operated and will continue to operate in a way that allows for market participants to trade on the basis of lawfully obtained material nonpublic information, the CFTC specifically recognized a variation of the “misappropriation” theory of insider trading.31 It explained that trading on the basis of material nonpublic information “in breach of a pre-existing duty (established by another law or rule, or agreement, understanding, or some other source), or by trading on the basis of material nonpublic information that was obtained through fraud or deception” would violate the rule.32 For example, an employee would violate Rule 180.1 by trading swaps, commodities, or futures based on material nonpublic information learned through his or her employment if the employee’s employment contract prohibited trading based on such information, thereby creating a pre-existing duty. We expect that insider trading actions based on employee misappropriation of information will be an area of increased focus for the CFTC going forward.33
Anti-Disruptive Trading Practices
Dodd-Frank specifically delineated and prohibited certain types of “disruptive” trading practices.34 In May 2013, the CFTC issued interpretive guidance as to the meaning of these prohibitions.35 In its first case under the CEA’s prohibition against “spoofing”—bidding or offering with the intent to cancel the bid or offer before execution—the CFTC obtained $2.8 million in civil penalties and disgorgement against Panther Energy Trading LLC and its principal for exploiting the false impression of trading interest created by the placement and immediate cancellation of large bids and offers in futures contracts.36 The Enforcement Division has expressed its intention to “police the market for this type of activity” and “bring charges against those who attempt to illegally game prices for their own advantage.”37
Under Title VII, the Commission, traditionally responsible for regulating futures and options transactions, will now also regulate the majority of the swaps market.38 This expansion will subject a new subset of trading activities to CFTC scrutiny.
Retail Commodity Transactions Jurisdiction
Dodd-Frank expanded the CFTC’s jurisdiction to include retail commodity transactions.39 In 2013, the CFTC obtained a preliminary injunction40 against Hunter Wise Commodities, LLC and eighteen other defendants, stemming from the CFTC’s December 2012 complaint41 charging the defendants with operating a multi-million dollar fraudulent precious metals scheme by, inter alia, illegally offering off-exchange investments in physical metals to retail consumers.
Looking Ahead to 2014—Other Considerations
Based on recent comments and activities by the Commission and its current and former officials, other significant issues to watch in 2014 include the following:
High Frequency Trading
The CFTC announced in the fall of 2013 that it would devote significant attention to high frequency trading as it relates to the futures and derivatives markets. On September 12, 2013, the CFTC published a concept release regarding automated trading systems (ATSs) and risk controls (the “Concept Release”), in the wake of several disruptive events associated with automated trading.42 According to the Concept Release, which focuses particularly on the growing presence of ATSs and high frequency trading, the CFTC is interested in cataloguing current practices and obtaining comment on whether it should impose, through additional rulemaking, “measures intended to reduce the likelihood of market disrupting events and mitigate their impact when they occur.”43 Market participants involved in high frequency trading should monitor any subsequent rule proposals in this area as the CFTC may consider requiring firms to institute new pre- and post-trade measures and controls, system safeguards, and other protections.44 Such rulemaking could later result in enforcement actions to the extent a firm’s controls are deemed insufficient to prevent significant market disruptions.
Inter-Agency Coordination and Parallel Criminal Proceedings
The Commission has prioritized coordination with criminal authorities, with a reported “93% of the CFTC’s major fraud cases” having a parallel criminal case.45 Such coordination may enable the Commission to focus its budget-constrained efforts on actions against institutions, while other authorities pursue criminal investigations against individuals.46 Indeed, the recent Rabobank investigation was conducted in concert with the DOJ, the Federal Bureau of Investigation, and Dutch, Japanese, and UK agencies.47 The $475 million civil penalty came in addition to a $325 million criminal penalty announced the same day by the DOJ,48 and the DOJ has subsequently filed criminal charges against three Rabobank traders.49
Admissions of Wrongdoing
Although the CFTC has secured admissions in certain notable cases in 2013,50 it remains unclear whether this will become the CFTC’s standard procedure. It seems unlikely that the CFTC will adopt this as a uniform policy going forward. As former Enforcement Director Meister noted, the goals of the CFTC are still served by no-admit, no-deny settlements because “there is a degree of responsibility … even when the defendant doesn’t explicitly admit the underlying facts.”51 However, inter-agency coordination in high-profile matters raises a question as to whether the CFTC will follow the SEC’s new pursuit of more admissions of wrongdoing in settlements in cases involving the interests of both agencies.52
Dodd-Frank expanded the CFTC’s enforcement authority to police manipulative and disruptive conduct, as well as new products. With the near-completion of the CFTC’s rulemakings to implement the Act, there are now numerous new statutory and regulatory areas of potential enforcement actions. Over the past few years, particularly since the financial crisis, the CFTC exhibited a new assertiveness in the types of cases under investigation and the magnitude of the civil penalties assessed. The results of the Commission’s new vigorous enforcement approach were clearly exhibited in 2013, when the agency levied record fines and issued several significant penalties under its new statutory authority. In addition to a continued pursuit of the more traditional-style inquiries under pre-Dodd-Frank authority, in 2014 we expect to see the Commission continue to aggressively investigate and pursue potential manipulation cases, particularly under its new authority. These matters could present new theories of liability under the new rules, and parties responding to an inquiry will need to carefully navigate a response, including being sensitive to the potential for parallel proceedings and demands for admissions of liability. Respondents would be well-served by consulting counsel with a broad range of regulatory enforcement experience before independently engaging with the agency in this uncharted area.
1 The Dodd-Frank Wall Street Reform and Consumer Protection Act, Pub. L. No. 111-203, H.R. 4173 § 753 (July 21, 2010) (amending the Commodity Exchange Act (codified at 7 U.S.C. § 1 et seq.)).
2 “CFTC Releases Enforcement Division’s Annual Results,” CFTC Release No. PR6749-13 (Oct. 24, 2013) [hereinafter “2013 Annual Results Release”].
4 In fiscal year 2013, the CFTC filed 82 enforcement actions, compared to 102 actions filed in fiscal year 2012. Over the past three fiscal years, the CFTC filed 283 actions, nearly double the number of actions brought during the prior three fiscal years, and opened more than 290 new investigations. Id.
5See Jean Eaglesham, “SEC Brings Fewer Enforcement Actions, Slows Early-Stage Probes,” THE WALL STREET JOURNAL (Dec. 17, 2013) (reporting fewer enforcement actions filed by the SEC, FINRA and the CFTC); “SEC Announces Enforcement Results for FY 2013,” SEC Release No. 2013-264 (Dec. 17, 2013).
6See Robert Schmidt and Silla Brush, “Budget Woes Leave Swaps Agency Outgunned by Wall Street,” BLOOMBERG (Jan. 17, 2014).
7See Douwe Miedema, “Exit Sparks Rising Chatter Over U.S. Swap Watchdog Top Roles,” REUTERS (Nov. 6, 2013); John Kemp, “New commissioners open CFTC to change,” REUTERS (Nov. 6, 2013).
8See Sarah Lynch, “Wall Street Regulators Face Budget Crunch Under New Spending Deal,” REUTERS (Jan. 14, 2014).
9See In re Coöperatieve Centrale Raiffeisen-Boerenleenbank B.A., CFTC Docket 14-02 (Oct. 29, 2013); see also “Rabobank to Pay $475 Million Penalty to Settle Manipulation and False Reporting Charges Related to LIBOR and Euribor,” CFTC Release No. PR6752-13 (Oct. 29, 2013) [hereinafter “Rabobank Release”].
10See 2013 Annual Results Release.
11 Indeed, in early January 2014, the Department of Justice (“DOJ”) filed criminal charges against three of the Rabobank traders on the heels of the CFTC settlement. “Three Former Rabobank Traders Charged With Manipulating Yen Libor,” Dept. of Justice Release No. 14-038 (Jan. 13, 2014).
12 On Nov. 8, 2013, following a two-year, multi-agency criminal and civil investigation, the CFTC obtained a Consent Order in the Southern District of New York against MF Global Inc. and levied a $100 million civil penalty on top of $1.2 billion in restitution to customers for losses incurred when the firm failed in 2011. In the Consent Order, MF Global admitted to, inter alia, misusing segregated customer accounts to fund its proprietary operations. See Final Consent Order Of Restitution, Civil Monetary Penalty, And Ancillary Relief, CFTC v. MF Global Inc., No. 11-CIV-7866 (S.D.N.Y. Nov. 8, 2013).
13See “CFTC Charges MF Global Inc., MF Global Holdings Ltd., Former CEO Jon S. Corzine, and Former Employee Edith O’Brien for MF Global’s Unlawful Misuse of Nearly One Billion Dollars of Customer Funds and Related Violations,” CFTC Release No. PR6626-13 (June 27, 2013).
14 In July 2012, the CFTC accused PFG and its owner, Russell R. Wasendorf, Sr., of committing fraud by misappropriating customer funds in segregated accounts, violating customer segregation laws, and making false statements in filings required by the Commission concerning funds held in segregation for customers trading on U.S. exchanges. See Complaint, CFTC v. Peregrine Fin. Grp., Inc., No. 1:12-CV-05383 (N.D. Ill. filed July 10, 2012). The Court entered a default judgment against PFG in February of 2013. See Default Judgment Order of Permanent Injunction and Other Ancillary Relief, CFTC v. Peregrine Fin. Grp., Inc., No. 1:12-CV-05383 (N.D. Ill. entered Feb. 13, 2013). Wasendorf also was charged criminally and pled guilty. On January 23, 2013, Wasendorf was sentenced to 50 years in prison and ordered to pay more than $215 million in restitution. See United States v. Russell Wasendorf, Sr., No. 12-CR-2021-LRR (N.D. Iowa Jan. 23, 2013).
15See “CFTC Permanently Bars Accountant, Jeannie Veraja-Snelling, for Failing to Properly Audit Peregrine Financial Group, Inc.,” CFTC Release No. PR6675-13 (Aug. 26, 2013); “CFTC Files Complaint against U.S. Bank, N.A. Alleging Unlawful Use of Peregrine Financial Group, Inc.’s Customer Segregated Funds and Violation of Customer Segregation Laws,” CFTC Release No. PR6601-13 (June 5, 2013) [hereinafter “U.S. Bank Release”].
16 U.S. Bank Release.
17See 2013 Annual Results Release.
19 Prohibition on the Employment, or Attempted Employment, of Manipulative and Deceptive Devices and Prohibition on Price Manipulation, 76 Fed. Reg. 41,398, 41,398 (July 14, 2011); see Dodd-Frank (amending Commodity Exchange Act § 6(c) (codified at 7 U.S.C. § 9)).
20See Consent Order for Permanent Injunction, Civil Monetary Penalty, and Other Equitable Relief, CFTC v. Arista LLC, 12-CIV-9043 (S.D.N.Y. Dec. 3, 2013); “Federal Court Orders Defendants Arista LLC, Abdul Sultan Walji, and Reniero Francisco, All of Southern California, to Pay over $22 Million in Restitution and Fines for Commodity Pool Fraud and Making False Statements to the CFTC,” CFTC Release No. PR6786-13 (Dec. 13, 2013).
21See Default Judgment, CFTC v. Peregrine Fin. Grp., Inc., No. 1:12-CV-05383 (N.D. Ill. entered Feb. 13, 2013).
22See In re Butterfield, CFTC Docket No. 13-33 (Sep. 16, 2013); “CFTC Orders Futures Broker Employee Susan Butterfield to Pay $50,000 Penalty in Settlement of Charges of Making False Statements to the CFTC During Her Investigative Testimony,” CFTC Release No. PR 6693-13 (Sep. 16, 2013); see also Final Judgment and Consent Order for Permanent Injunction, Civil Monetary Penalty, and Other Equitable Relief, CFTC v. Nunn, 12-CIV-7786 (S.D.N.Y. Dec. 18, 2013).
23 “CFTC Orders President of a Russian Bank, Artem Obolensky, to Pay $250,000 Penalty to Settle Charges of Making False Statements to the CFTC During an Investigation,” CFTC Release No. PR6815-14 (Jan. 2, 2014).
24See Dodd-Frank (amending Commodity Exchange Act § 6(c) (codified at 7 U.S.C. § 9)); 76 Fed. Reg. at 41,399 (“The language of CEA section 6(c)(1), particularly the operative phrase ‘manipulative or deceptive device or contrivance,’ is virtually identical to the terms used in section 10(b) of the Securities Exchange Act of 1934.”); id. (“Given the similarities between CEA section 6(c)(1) and Exchange Act section 10(b), the Commission deems it appropriate and in the public interest to model final Rule 180.1 on SEC Rule 10b–5.”).
25 76 Fed. Reg. at 41,399.
26See 17 C.F.R. § 180.1(a).
27See id. For a discussion of the similarities and differences between these two enforcement provisions, see WilmerHale Client Alert, The Commodity Futures Trading Commission Issues Sweeping New Rules to Prohibit Fraud and Manipulation in the Swaps, Cash, and Futures Markets (July 28, 2011), available at http://www.wilmerhale.com/pages/publicationsandnewsdetail.aspx?NewsPubId=88783.
28 “CFTC Files and Settles Charges Against JPMorgan Chase Bank, N.A., for Violating Prohibition on Manipulative Conduct in Connection with ‘London Whale’ Swaps Trades,” CFTC Release No. PR6737-13 (Oct. 16, 2013) [hereinafter “JPMorgan Release”].
29See Consent Order For Permanent Injunction, Restitution, Civil Monetary Penalty, And Other Equitable Relief, CFTC v. Atl. Bullion & Coin, Inc., 8:12-cv-01503-JMC (D.S.C. Feb. 27, 2013); “CFTC Settles Charges against Ronnie Gene Wilson of South Carolina and His Company, Atlantic Bullion and Coin, for Operating a Multi-Million Dollar Silver Bullion Ponzi Scheme,” CFTC Release No. PR6524-13 (Feb. 28, 2013).
30 76 Fed. Reg. at 41,403.
33 The CFTC recently filed a complaint against two CME NYMEX employees, the CME NYMEX, and a broker alleging violations of Section 9(e)(1), which prohibits trading on, or disclosure of, material, nonpublic information gained through specific employment relationships, for conduct that occurred prior to Dodd-Frank’s adoption. The CFTC alleged that the employees shared material, nonpublic information concerning transactions on the exchange with a broker. See Amended Complaint, CFTC v. Byrnes, No. 13-CIV-1174 (S.D.N.Y. May 8, 2013). The CFTC complaint also alleges that the broker who received the information from the CME employees aided and abetted the employees’ violation of Section 9(e)(1), though notably the CFTC did not allege that the broker violated Section 9(e)(2), which prohibits trading on the material nonpublic information received from the person with the employment relationship. Id.
34 7 U.S.C. § 6c(a)(5)(C).
35See CFTC, Antidisruptive Practices Authority, Interpretive Guidance & Policy Statement, 78 Fed. Reg. 31,890 (May 28, 2013), available at http://www.cftc.gov/ucm/groups/public/@lrfederalregister/documents/file/2013-12365a.pdf. For a discussion of the CFTC’s final interpretive guidance on prohibition on certain disruptive trading practices added by Dodd-Frank, see WilmerHale Client Alert, CFTC Staff Finalizes Guidance on Anti-Disruptive Trading Practices (May 23, 2013), available at http://www.wilmerhale.com/pages/publicationsandnewsdetail.aspx?NewsPubId=10737421468.
36See Order Instituting Proceedings Pursuant To Sections 6(C) And 6(D) Of The Commodity Exchange Act, As Amended, Making Findings And Imposing Remedial Sanctions, In re Panther Energy Trading LLC, CFTC Docket No. 13-26 (July 22, 2013); “CFTC Orders Panther Energy Trading LLC and its Principal Michael J. Coscia to Pay $2.8 Million and Bans Them from Trading for One Year, for Spoofing in Numerous Commodity Futures Contracts,” CFTC Release No. PR6649-13 (July 22, 2013). Earlier in the 2013 fiscal year, the CFTC filed two smaller, pre-Dodd-Frank actions that could fall under the definition of spoofing: CFTC v. Moncada, No. 12-CIV-8791 (S.D.N.Y. filed Dec. 4, 2012) and In re Gelber Grp., LLC, CFTC Docket No. 13-15 (CFTC filed Feb. 8, 2013), the latter of which concluded with a $750,000 civil penalty.
37 "CFTC Files Complaint in Federal Court against Eric Moncada, BES Capital LLC, and Serdika LLC Alleging Attempted Manipulation of Wheat Futures Contract Prices, Fictitious Sales, and Non-Competitive Transactions,” CFTC Release No. PR6441-12 (Dec. 4, 2012) (charging defendants with manipulation of futures contracts through spoofing in a pre-Dodd-Frank case).
38See 15 U.S.C. § 8304.
39See 7 U.S.C. § 2(c)(2)(D).
40See Order, Plaintiff’s Motion for Preliminary Injunction, CFTC v. Hunter Wise Commodities, LLC, No. 12-81311 (S.D. Fla. entered Feb. 25, 2013).
41 Complaint, CFTC v. Hunter Wise Commodities, LLC, No. 12-81311 (S.D. Fla. filed Dec. 5, 2012).
42 78 Fed. Reg. 56,542 (Sept. 12, 2013), available at http://www.cftc.gov/ucm/groups/public/@lrfederalregister/documents/file/2013-22185a.pdf.
43 Id. at 56,551. The CFTC has reopened the comment period for its Concept Release regarding automated systems and risk controls. The new comment period commenced on January 21, 2014, the date of a public meeting of the CFTC’s Technology Advisory Committee (“TAC”), at which the TAC and subcommittees on Automated and High Frequency Trading and Data Standards discussed the Concept Release, as well as issues related to swap data reporting and swap execution facilities. The new comment period will extend through February 14, 2014. See “CFTC Reopens Comment Period for Concept Release on Risk Controls and System Safeguards for Automated Trading Environments,” CFTC Release No. PR6835-14 (Jan. 17, 2014).
44 For a more detailed discussion of the CFTC’s Concept Release on Automated Systems and its implications, see WilmerHale Client Alert, “CFTC Concept Release on Automated Systems and Risk Controls” (September 16, 2013), available at http://www.wilmerhale.com/pages/publicationsandnewsdetail.aspx?NewsPubId=10737422129.
45 2013 Annual Results Release.
46 At a Financial Crimes and Cybersecurity conference held at the Federal Reserve Bank of New York, former Director of Enforcement, David Meister, noted that inter-agency coordination can be expected to increase in the future. See Eric Hornbeck, “Ex-CFTC Official Says Parallel Proceedings Will Increase,” Law360 (Nov. 19, 2013).
47See Rabobank Release.
48See “Rabobank Admits Wrongdoing in Libor Investigation, Agrees to Pay $325 Million Criminal Penalty,” Dept. of Justice Release 13-1147 (Oct. 29, 2013), available at http://www.justice.gov/opa/pr/2013/October/13-crm-1147.html.
49See “Three Former Rabobank Traders Charged With Manipulating Yen Libor,” supra note 11.
50See, e.g., Final Consent Order Of Restitution, Civil Monetary Penalty, And Ancillary Relief, CFTC v. MF Global Inc., No. 11-CIV-7866 (S.D.N.Y. Nov. 8, 2013) (MF Global “[a]dmits the allegations pertaining to liability against MF Global based on acts and omissions of its employees as set forth in this Consent Order and the Complaint….”); JPMorgan Release, CFTC Release No. PR6737-13.
51 Hornbeck, Law360 (Nov. 19, 2013).
52 See Mary Jo White, “The Importance of Trials to the Law and Public Accountability,” Remarks at 5th Annual Judge Thomas A. Flannery Lecture, Washington D.C., Nov. 14, 2013.