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William F. Johnson William F. Johnson

On May 20, the Commodity Futures Trading Commission (the CFTC or the commission) issued—for the first time since 1994—new guidance outlining factors the Division of Enforcement will consider in recommending civil monetary penalties to be imposed in enforcement actions (hereinafter, the May 2020 guidance). In releasing this guidance, the CFTC stressed its commitment to clarity and transparency in its enforcement practices, in an effort to simultaneously be fair and tough in light of the rise of commodities-related enforcement actions. The new guidance continues the CFTC’s trend toward formalizing its practices, as evidenced by the creation of an enforcement manual just last year, which has now been updated to reflect the May 2020 guidance. In a welcome move seemingly designed to minimize the “piling on” of remedies in matters involving multiple regulators, the May 2020 guidance states that the CFTC will account for the remedies and relief in parallel cases involving criminal authorities and other regulatory entities.

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