New Guidance on How Civil Monetary Penalties Are Determined in CFTC Enforcement Matters: The CFTC Division of Enforcement Issued New Guidance Requiring Staff to Consider the Gravity of the Violation, Mitigating and Aggravating Circumstances, and Other Considerations in Recommending Civil Monetary Penalties.

Sullivan & Cromwell LLP - May 21, 2020
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On May 20, 2020, the Commodity Futures Trading Commission’s (the “CFTC” or the “Commission”) Division of Enforcement (the “Division”) issued new guidance outlining the factors to be considered by the Staff when making recommendations for civil monetary penalties (“CMPs”).  The guidance—a step toward increased transparency in CFTC enforcement matters—is the Division’s first publicly issued CMP-related guidance since the Commission published its penalty guidelines in 1994 and is binding on all Staff in the Division of Enforcement.  The guidance provides a three-pronged approach to evaluating an appropriate penalty to recommend to the Commission: (i) the gravity of the violation, (ii) specified mitigating and aggravating circumstances and (iii) other considerations.  In applying these factors, the Staff must be guided “by the overarching consideration of ensuring that any proposed penalty achieves the dual goals of specific and general deterrence.”