Cleary Gottlieb Reviews CFTC’s New Cooperation Guidelines for Enforcement Actions

On January 19, 2017, the U.S. Commodity Futures Trading Commission (the “CFTC”) Division of Enforcement (the “Division”) issued two Enforcement Advisories setting forth the factors that the Division may consider in assessing cooperation by companies and individuals in the context of CFTC enforcement proceedings.

The Enforcement Advisories provide greater guidance on the Division’s view as to what constitutes effective cooperation by a company and/or an individual in a CFTC investigation and enforcement action.  They also continue a broader trend of authorities, both in the U.S. and abroad, articulating demanding standards that a company must meet to … Read more

Cleary Explores Appeals Court Split Over SEC Administrative Cases

On December 27, the United States Court of Appeals for the Tenth Circuit in Bandimere v. S.E.C.[1] found that the Securities and Exchange Commission’s (“SEC”) use of administrative law judges (“ALJs”) violated the U.S. Constitution. While the court’s opinion relies on a somewhat arcane question of administrative law—whether the hiring of SEC ALJs must comply with the Appointments Clause of the Constitution—its decision to set aside an SEC order imposing sanctions for securities laws violations raises significant questions about future SEC claims brought before ALJs rather than in federal courts, as well as prior adjudications.  With the D.C. Circuit … Read more

Cleary Gottlieb discusses Restitution for Internal Investigations

Few crises are worse for a public corporation than to lose one of its top officers to a federal criminal investigation, particularly one resulting in a conviction.  Yet, the loss of such an officer to an investigation is not unheard-of, particularly in a change-of-control transaction.  In past decisions, the Second Circuit has provided a silver lining.  At least, the corporate employer can recover as restitution the costs of an internal investigation that assisted in an employee’s subsequent conviction.[1]  In United States v. Cuti,[2] the Second Circuit recently established and reiterated guidelines for such restitution.  The decision is a reminder … Read more