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Robert J. Anello and Richard F. Albert

Two recent prosecutions in the foreign exchange (F/X) market raise questions about the use of general criminal statutes to regulate a trading practice that Congress, specialized regulators, and market rules have declined to prohibit. The conduct at issue is what bankers call pre-positioning, and what the government pejoratively labels “trading ahead” or “front running.” In both cases, the context was a complex, multi-billion dollar F/X trade between a bank and a major corporation that had the benefit of sophisticated advice and was well able to negotiate different trading terms if it was willing to pay for them.

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