Reed Smith Client Alerts

This alert follows on from our prior client alert of April 1, 2019, regarding the U.S. Commodity Futures Trading Commission’s (the Commission or CFTC) recent announcement in March of its intention to investigate foreign corrupt practices that affect the U.S. commodities and derivatives markets. The CFTC’s latest whistleblower alert (the Alert), which was published in May, reinforces the Commission’s message that it is determined to pursue violations of the Commodity Exchange Act (CEA) that are connected to foreign bribery.

Authors: Calvin Chan

1. The CFTC’s whistleblower program

The CFTC’s whistleblower program (the Program), which was created by the Dodd-Frank Act in 2010, provides financial incentives to individuals, or a group of individuals, who voluntarily report possible violations of the CEA that leads to a successful CFTC enforcement action and that results in monetary sanctions of over $1 million, or the successful enforcement of a related action brought by another enforcement agency.

Under the Program, whistleblowers who meet these criteria are eligible to receive between 10 and 30 percent of the collected monetary penalties. The Program also affords anti-retaliation and confidentiality protections for whistleblowers.

To date, the Commission has awarded over $90 million to whistleblowers since issuing its first award in 2014. The CFTC’s enforcement actions associated with these awards have resulted in monetary sanctions totaling more than $675 million.

2. The Alert

In May 2019, the CFTC published the Alert to advertise the Program and encourage individuals to come forward to report potential violations of the CEA, that are connected to foreign corrupt practices.

The Alert, titled “Blow the whistle on foreign corrupt practices in the commodities and derivatives markets,” describes foreign corrupt practices as including “actions that seek to improperly influence foreign officials with personal payments or rewards.”

The Alert also enumerates a non-exhaustive list of three forms of misconduct that would fall under the purview of foreign corrupt practices: (1) corrupt practices that alter the prices in commodity markets that affect related derivatives prices, (2) bribes employed to secure business in connection with regulated activities (e.g., trading, advising, or dealing in swaps or derivatives), and (3) corrupt practices, including false reporting, that manipulate benchmarks that serve as the basis for related derivatives contracts.

Notably, these forms of misconduct could arise from conduct entered into solely outside the United States.