Cadwalader lawyers have extensive experience representing clients in all types of regulatory matters before the U.S. Commodity Futures Trading Commission (CFTC) and the National Futures Association (NFA). With both lawyers and non-lawyer professional advisors who have worked for the CFTC, Cadwalader advises financial institutions, swap dealers (SDs), hedge funds, energy companies, commodity trading companies, designated contract markets (DCMs) and swap execution facilities (SEFs), futures commission merchants (FCMs), commodity pool operators (CPOs), and commodity trading advisors (CTAs) and other regulated entities.
Our advice extends to issues regarding the application and scope of Commodity Exchange Act (CEA) and CFTC and NFA rules and regulations governing trade practices, registration requirements or exemptions, reporting and recordkeeping requirements. We represent companies in petitions for review of CFTC orders and rulemaking efforts before the federal circuit courts of appeal and counsel clients on challenges to agency proceedings, rules and decisions. The group's experience with and understanding of agency proceedings and rulemakings, along with its understanding of the implications of judicial review, positions Cadwalader as a leader in counseling clients on these important regulatory and administrative matters.
As the Securities and Exchange Commission (SEC) is finalizing its regulations under the Dodd Frank Act, we assist clients with derivatives regulatory matters involving SEC-regulated products as well as the products and transactions that trigger both the CFTC’s and SEC’s jurisdictional reach. For example, many such matters come up in the context of digital assets and crypto matters and SDs involved in both commodity and security-based swaps transactions.
Our lawyers also assist clients with the development of new legislation and strategy regarding regulatory matters, and provide compliance training and manuals that address CFTC and NFA-related issues. We regularly advise clients on:
- Trade practices and compliance in OTC markets, SEFs, DCMs and derivatives clearing organizations (DCOs);
- Registration of every CFTC/NFA regulated entity and design of their compliance programs;
- Ensuring regulatory compliance of non-US markets participants with US counterparties and customers;
- Implementation of trading strategies to comply with CEA and CFTC regulations;
- Legislative and regulatory advocacy;
- CFTC enforcement of anti-manipulation and fraud and other regulatory violations;
- Market reform initiatives;
- Submission of comments to proposed agency regulations;
- CFTC Form 40 and other filings;
- Clearing and trading hedge exemptions;
- Position limits;
- Application of CFTC regulations to agricultural options and swaptions;
- Spot and forward contracting programs;
- Performance of compliance audits; and
- Appellate litigation and challenges to agency rules, orders, and proceedings.
We also advise clients with respect to CFTC, NFA and SEC enforcement and government investigations. Our enforcement defense lawyers regularly represent commodity traders and companies in investigations and litigation involving physical, OTC, and regulated futures trading involving matters such as misappropriation of material non-public information, manipulation and fraud, and FCPA-type commodity violations. They are experienced in civil and criminal proceedings that involve allegations of fraud, manipulation, false reporting, and multiple other regulatory violations.