Michael Sackheim

15 May 2019

A New Roadmap: CFTC Releases Its First-Ever Public Enforcement Manual

On May 8, 2019, the Commodity Futures Trading Commission (CFTC) Division of Enforcement (DOE or Division) released its first publicly available Enforcement Manual. The Manual provides an overview of the Division and sets out the general policies and procedures that guide its Staff in detecting, investigating and prosecuting violations of the Commodity Exchange Act (CEA) and Commission regulations. According to its simultaneous press release, in publishing the Manual the CFTC intends to “increase transparency, certainty, and consistency, and, more generally, to advance the rule-of-law principles that underpin all DOE and CFTC enforcement actions.”


30 June 2016

CFTC Proposal re Energy Swaps

The CFTC recently issued a release that may be of interest to you.  Derivatives clearing organizations (DCOs) are required under the Commodity Exchange Act to file certain information with the CFTC when they list new categories of swaps for clearing.  That information is intended to provide a basis on which the CFTC may determine whether to propose to mandate clearing for those swaps.  Over the past few years, a number of these swaps submissions have been made by the DCOs.  The DCOs have made 34 submissions so far, which include certain interest rate swaps, credit default swaps, FX NDFs, energy swaps, agricultural swaps and inflation swaps.  To date, the CFTC has simply been sitting on those submissions.  However, on June 23 the CFTC issued a blanket request for public comment on all of these DCO swaps submissions.  The CFTC is not currently proposing to mandate clearing for any of the swaps that are the subject of the DCO submissions, however, the CFTC will take public comments into consideration in determining whether to propose one or more clearing mandates in the future.  Comments must be submitted by July 25, 2016.  For reference, here is a link to the CFTC’s press release on this topic:

17 May 2016

Energy Enforcement Update

On May 10, 2016, the Commodity Futures Trading Commission (CFTC) issued a press release announcing proposed amendments (the Proposed Amendments) to an order issued in 2013 (the RTO-ISO Order) relating to certain electric energy-related products. If adopted, the amendments would allow private litigants to sue certain Regional Transmission Organizations (RTOs), Independent System Operators (ISOs) and market participants for certain violations of the Commodity Exchange Act (CEA) and CFTC regulations (the CFTC Rules) relating to such products, including for alleged fraud or market manipulation. The Proposed Amendments would effectively reverse the holding in a recent Fifth Circuit case, Aspire Commodities v. GDF Suez Energy North America,  in which the court held that private rights of action for violation of the CEA and CFTC Rules were foreclosed pursuant to the RTO-ISO Order. The Proposed Amendments were approved by the Commissioners by a two over one vote with a dissent from Commissioner J. Christopher Giancarlo.

The CFTC’s proposal to amend the RTO-ISO order was published in the Federal Register as of May 16, 2016. The Proposed Amendments will be open for public comment until June 15, 2016.

Please see the full update here.