Citigroup Trader Non-Prosecution Pact Signals New CFTC Tactic

June 30, 2017

Jodi Avergun comments to Bloomberg BNA about the Commodity Futures Trading Commission's first-ever non-prosecution agreements.

An excerpt from "Citigroup Trader Non-Prosecution Pact Signals New CFTC Tactic," Bloomberg BNA, June 30, 2017:

The use of the non-prosecution agreements signals a "more sophisticated, Justice Department-like" approach to enforcement, Jodi Avergun, a partner at Cadwalader, Wickersham & Taft LLP, Washington, who represents corporations and individuals in civil and criminal cases, told Bloomberg BNA.

The CFTC is "exerting its authority to the fullest extent it can," Avergun said, adding it's no coincidence that former prosecutor McDonald was the first at the agency to make use of the tool.

The agreements are consistent with a general law enforcement emphasis on holding individuals responsible for their conduct, even if done on behalf of a company, Avergun said. "The CFTC could have stopped with the Citigroup settlement in January, got a lot of money, and left it at that." Nonprosecution agreements are a creative way to use those with first-hand knowledge of intent to prove cases against other individuals, she said.

Avergun, who obtained the first non-prosecution agreement for an individual with the Securities and Exchange Commission in 2014, said the CFTC is relatively late in using the enforcement tool. "The CFTC is just trying to align themselves more with other agencies and use the same tools that other agencies" do, she said.