On March 6,2019, at the ABA’s National Institute on White Collar Crime, Jamie McDonald, the Director of the Commodity Futures Trading Commission’s (“CFTC”) Division of Enforcement, announced the publication of a new Enforcement Advisory. The Advisory sets forth that the CFTC will apply a presumption of no civil penalties where companies or individuals self-report violations involving foreign corrupt practices, absent aggravating circumstances. In order to qualify for the presumption the disclosure must be voluntary and be followed by full cooperation and appropriate remediation of the violation.
When evaluating aggravating circumstances, the CFTC will at a minimum consider:
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the involvement of executive or senior level management of the company in the violation;
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whether the misconduct was pervasive within the company; and
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whether the company or individual has previously engaged in similar misconduct.
The Advisory also made clear that in order to qualify for resolution without a civil penalty, the CFTC would require that disgorgement, forfeiture, and/or restitution be paid related to the misconduct at issue.
McDonald made the announcement while speaking at a “Meet the Regulators” session along with enforcement officials from the Securities and Exchange Commission, and the Department of Justice’s Criminal Division and National Security Division. Each of the agency representatives discussed formal and informal incentives for cooperation. McDonald also noted that the CFTC would continue to prioritize market integrity, individual accountability, and coordination with other agencies during 2019.
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