• On October 29, 2020, the CFTC’s Division of Enforcement (“Division”) issued a staff memorandum providing guidance in recommending how the impact of a respondent’s cooperation, self-reporting, and remediation on the penalty imposed will be addressed in the CFTC’s enforcement orders. 

  • In response to market participants’ request for guidance on how the customer protection provisions of the Commodity Exchange Act (“Act”) and the Regulations (“Regulations”) of the Commodity Futures Trading Commission  (“CFTC”) apply to virtual currencies deposited by futures customers or cleared swaps customers with futures commission merchants (“FCMs”), the CFTC’s Division of Swap Dealer and Intermediary Oversight (“DSIO”) issued an advisory on October 21, 2020 (“Advisory”) regarding the holding of virtual currency in segregated accounts.  The Advisory provides FCMs with its views on accepting and holding customer virtual currency assets.  The Advisory also sets forth guidance on practices to consider in developing and maintaining risk management programs in accordance with Regulation 1.11 when holding virtual currency as customer funds.  With the issuance of this Advisory, FCMs holding virtual currencies as customer funds should consider themselves on notice of these requirements and should immediately incorporate these requirements into their risk management programs.    

  • As part of an effort  to promote transparency and clarity, on September 10, 2020, the Division of Enforcement (“Division”) of the U.S. Commodity Futures Trading Commission (“CFTC” or “Commission”) made public its internal guidance to its staff for evaluating compliance programs in connection with enforcement matters.  This three-page guidance, which will be incorporated into the Division’s Enforcement Manual follows a comprehensive memorandum that was previously announced by the U.S. Department of Justice (“DOJ”) in June 2020 for evaluating corporate compliance programs.  With the heightened scrutiny of compliance programs resulting in harsher penalties and undertakings, companies should conduct a comprehensive review of their respective compliance programs to ensure fulsome compliance with the guidance issued by both agencies before the regulator comes knocking at the door.

  •  On April 1, 2020, the Second Circuit revived a class action alleging that the manipulation of Yen LIBOR and Euroyen TIBOR by many of the world’s leading banks caused the plaintiffs to suffer economic injury.[1]  In Sonterra Capital Master Fund, Limited v. UBS AG,[2] the plaintiffs, a group of investment funds, allege that their trading of Yen foreign exchange forwards, interest rate swaps and interest rate swaptions were adversely affected by the defendants’ conduct. 

  •             On March 24, 2020, the Commodity Futures Trading Commission (“CFTC”) announced that it had unanimously adopted final interpretative guidance (“Final Interpretation”) regarding the term “actual delivery” as it is used in the Commodity Exchange Act (“CEA”) provisions governing retail commodity transactions in the context of virtual currencies.  In light of the path leading to the term “actual delivery” finding its way into the CEA and the CFTC’s prior attempts in apply it to virtual currencies, the Final Interpretation delivers a well-balanced approach to interpreting “actual delivery.”

  • On March 9, 2020, Congressman Paul A. Gosar, R-AZ, introduced H.R. 6154 entitled the “Crypto-Currency Act of 2020.”  The thrust of the proposed legislation is to assign primary regulatory authority to specific, existing Federal agencies over three different kinds of digital assets: “Crypto-Commodities,” “Crypto-Currencies” and “Crypto-Securities.” 

  • With the country seemingly having survived its most recent Presidential impeachment process, what is not commonly appreciated is the outsized role that Presidents involved directly or indirectly in impeachment proceedings have had on commodities regulation. 

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