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Articles by David E. Aron
CFTC Issues Advance Notice of Proposed Rulemaking on Regulation Crypto Asset Transactions and Regulation Crypto Asset Markets
Key Takeaways: CFTC To Regulate Leveraged or Potentially Leveraged Crypto Transactions – Reg CTX would treat trading on or subject to DCM rules of certain transactions involving crypto assets that are leveraged, margined, or financed (or offered on such a basis, whether or not entered into) as covered transactions under CEA Section 2(c)(2)(D).
CFTC Issues Advance Notice Of Proposed Rulemaking On Regulation Crypto Asset Transactions And Regulation Crypto Asset Markets
Key Takeaways: CFTC To Regulate Leveraged or Potentially Leveraged Crypto Transactions – Reg CTX would treat trading on or subject to DCM rules of certain transactions involving crypto assets that are leveraged, margined, or financed (or offered on such a basis, whether or not entered into) as covered transactions under CEA Section 2(c)(2)(D).
CFTC Divisions Interpret "U.S. Person" Definition And U.S. Location Versus Foreign Location
In Short The Situation: A 2024 CFTC enforcement action settlement that may have introduced a new test for when the Commodity Exchange Act and the agency's regulations apply on a cross-border basis concerned then-CFTC Commissioner and now Acting CFTC Chair Caroline Pham. The Results to Date: The CFTC staff recently provided some certainty to market participants engaging in cross-border derivatives trading by issuing an interpretative letter addressing issues raised in the 2024 settlement.
Updates on Proposed Stablecoin Legislation: the GENIUS Act and the STABLE Act
As Congress moves to enact comprehensive stablecoin legislation under the Trump administration, both the Senate and the House of Representatives have updated their respective payment stablecoin bills. Our recent Commentary discusses the prior versions of the bills.
New CFTC Cooperation, Self-Reporting, and Remediation Enforcement Advisory Introduces Major Changes
The Commodity Futures Trading Commission's ("CFTC") new enforcement advisory introduces several major changes in policy and a matrix helping those facing potential or actual CFTC investigations quantify the extent to which cooperation, self-reporting, and remediation can be expected to reduce penalties (a.k.a. "mitigation credit") that the CFTC staff would otherwise recommend to the commission in most cases.
Stablecoin Legislation: A Stroke of GENIUS? | JD Supra
In Short The Situation: President Trump's recent executive order "Strengthening American Leadership in Digital Financial Technology" promoted the development of dollar-backed stablecoins as official U.S. policy. To facilitate this policy, Congress needs to provide regulatory clarity to stablecoin issuers.
Stablecoin Legislation: A Stroke of GENIUS?
In Short The Situation: President Trump's recent executive order "Strengthening American Leadership in Digital Financial Technology" promoted the development of dollar-backed stablecoins as official U.S. policy. To facilitate this policy, Congress needs to provide regulatory clarity to stablecoin issuers.
The CFTC Issues First-of-Its-Kind Whistleblower Award to Control Function Insider
On March 14, 2024, the CFTC announced a roughly $1.25 million award to a whistleblower in a corporate compliance or internal audit function who internally reported misconduct and waited 120 days before reporting to the CFTC.
The CFTC Proposes Expansive Business and Governance Rules for Registered Derivatives Markets
In Short The Situation: The Commodity Futures Trading Commission ("CFTC") recently proposed new and modified conflicts of interest, fitness, and governance regulations for swap execution facilities ("SEFs") and designated contract markets ("DCMs").
No Fair Notice, But A Fair Outcome: Fifth Circuit Rules Against CFTC For
On January 9, 2024, the U.S. Court of Appeals for the Fifth Circuit reversed a 2022 jury verdict for the Commodity Futures Trading Commission ("CFTC") against EOX Holdings LLC and a former broker, Andrew Gizienski, holding "that the Defendants lacked fair notice of the CFTC's unprecedented interpretation of this thirty-nine-year-old Rule," and as such, "Rule 155.4(b)(2)(i), as written, does not apply to the Defendants' actions." The rule prohibits commodity brokers from "knowingly tak[ing],...
The CFTC Proposes Operational Resilience Framework for Swap Dealers and Futures Commission Merchants
In Short The Background: In 2012 and 2013, the Commodity Futures Trading Commission adopted rules requiring futures commission merchants, swap dealers, and major swap participants (collectively with swap dealers and futures commission merchants, "covered entities") to create risk management programs and swap dealers and major swap participants (together, "swap entities") to implement Business Continuity and Disaster Recovery plans.
The CFTC Proposes Rules to Protect Clearing Member Funds Held by DCOs
In Short The Situation: In a December 13, 2023, Open Meeting, the Commodity Futures Trading Commission proposed amendments to the Commission's regulations concerning clearing member funds held by a derivatives clearing organization (DCO). The Result: The proposed changes would revise 17 C.F.R. § 39.15 and § 39.19 to provide protections for clearing member funds held by DCOs comparable to protections currently in place for customer funds of futures commission merchant (FCM) customers.
Wait, There's More: The CFTC Proposes Additional Swap Reporting and Recordkeeping Amendments
The Commodity Futures Trading Commission ("CFTC") has proposed swap reporting and recordkeeping amendments that would: designate a unique product identifier ("UPI") and product classification system ("PCS") for the "other commodity" asset class; implement related geographic masking to preserve anonymity; and update the list of swap data elements that must be reported.
CFTC Proposes
The Background: As voluntary carbon credits ("VCCs") have grown in popularity, questions about their integrity and quality have arisen for investors and among regulators and lawmakers.
CFTC Proposes "Guidance" for Derivatives Markets on Listing Voluntary Carbon Credit Derivatives
In Short The Background: As voluntary carbon credits ("VCCs") have grown in popularity, questions about their integrity and quality have arisen for investors and among regulators and lawmakers.
CFTC Lacks Jurisdiction Over TRS On ETFs And Custom Baskets
The Situation: The civil action of the Commodity Futures Trading Commission ("CFTC") against Archegos Capital Management LP and its CFO is but one of many civil and criminal matters arising out of Archegos's catastrophic failure in early 2021.
CFTC Lacks Jurisdiction Over TRS on ETFs and Custom Baskets
In Short The Situation: The civil action of the Commodity Futures Trading Commission ("CFTC") against Archegos Capital Management LP and its CFO is but one of many civil and criminal matters arising out of Archegos's catastrophic failure in early 2021.
New CFTC Enforcement On Carbon Markets Misconduct
On June 20, 2023, the United States Commodity Futures Trading Commission ("CFTC") Whistleblower Office, a unit of the agency's Division of Enforcement ("DOE"), issued a rare alert, soliciting tips about potential fraud and manipulation in the carbon markets. This is an exceedingly unusual move by the CFTC. It signals an aggressive new posture in its regulation of the nascent market for carbon allowances, carbon credits, and other environmental commodities, including "tokenized" credits.
New CFTC Enforcement on Carbon Markets Misconduct
Introduction On June 20, 2023, the United States Commodity Futures Trading Commission ("CFTC") Whistleblower Office, a unit of the agency's Division of Enforcement ("DOE"), issued a rare alert, soliciting tips about potential fraud and manipulation in the carbon markets. This is an exceedingly unusual move by the CFTC.
SEC Rebuked For Failing To Explain Why It Declined To Regulate A Financial Product
The SEC's loss highlights a bigger problem with legislation that calls for sharing jurisdiction with the CFTC over financial products. On July 28, 2023, a three-judge panel of the United States Court of Appeals for the District of Columbia granted a petition from a registered futures exchange challenging a 2020 Securities and Exchange Commission ("SEC") order treating SPIKES index futures ("SPIKES") as futures rather than as security futures ("Order").
SEC Rebuked for Failing to Explain Why It Declined to Regulate a Financial Product
On July 28, 2023, a three-judge panel of the United States Court of Appeals for the District of Columbia granted a petition from a registered futures exchange challenging a 2020 Securities and Exchange Commission ("SEC") order treating SPIKES index futures ("SPIKES") as futures rather than as security futures ("Order").
Federal Agencies Coordinate Action Against Celsius For Fraud And Manipulation - Fin Tech - United States
In Short The Situation: In parallel federal actions, the Department of Justice ("DOJ"), Securities and Exchange Commission ("SEC"), Commodity Futures Trading Commission ("CFTC"), and Federal Trade Commission ("FTC") brought actions against Celsius Network LLC ("Celsius") and one of its founders and former chief executive officer, Alexander Mashinsky ("Mashinsky"), and other persons related to Celsius.
Federal Agencies Coordinate Action Against Celsius for Fraud and Manipulation
In Short The Situation: In parallel federal actions, the Department of Justice ("DOJ"), Securities and Exchange Commission ("SEC"), Commodity Futures Trading Commission ("CFTC"), and Federal Trade Commission ("FTC") brought actions against Celsius Network LLC ("Celsius") and one of its founders and former chief executive officer, Alexander Mashinsky ("Mashinsky"), and other persons related to Celsius.
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