Reprinted with permission from Futures and Derivatives Law Report , Volume 42 , Issue 5 , K2022 Thomson Reuters . Further reproduction without permission of the publisher is prohibited . For additional information about this publication , please visit https :// legal . thomsonreuters . com /.

May 2022 ▪ Volume 42 ▪ Issue 5

The Journal on the Law of Investment & Risk Management Products

CFTC 2022 : A NEW COMMISSION , A NEW AGENDA , SAME AGGRESSIVE ENFORCEMENT

By Anne Termine , Claire Cahoon and Annie Willett

Anne Termine is a partner in Bracewell ’ s Government Enforcement & Investigations Group and leads the firm ’ s Cryptocurrency and Blockchain practice ; she is a former Chief Trial Attorney in the U . S . Commodity Futures Trading Commission ’ s Division of Enforcement . Claire Cahoon is an associate in Bracewell ’ s Government Enforcement & Investigations group . Their email addresses are anne . termine @ bracewell . com and claire . cahoon @ bracewell . com . Annie Willett is a former associate of Bracewell and is a judicial law clerk for the Hon . Carolyn N . Lerner at the U . S . Court of Federal Claims .

I . INTRODUCTION

The Commodity Futures Trading Commission ( the “ Commission ” or “ CFTC ”) experienced a year of transition on both the enforcement and regulatory fronts during its Fiscal Year 2021 , which runs from October 1 , 2020 through September 30 , 2021 (“ FY 2021 ”). The Division of Enforcement ( the “ Division ”) faced a significant litigation docket due to the 33 federal civil complaints and 20 administrative complaints filed during its record enforcement year in FY 2020 , which puts pressure on resources for a division of only 150 attorneys . 1 Regardless , the Commission still brought 55 actions in FY 2021 , 2 focusing on its traditional areas of manipulation , fraud , and regulatory and registration violations . The agency also brought over 20 actions involving digital assets , a significant area of enforcement focus . 3 On the regulatory front , the CFTC was relatively quiet , reflecting the administration change in the White House and the resulting complete turnover of the Commission . 4

A newly confirmed Chairman and four Commissioners will herald a new regulatory agenda for the CFTC , focused on defining the agency ’ s role with respect to digital assets , addressing climate change and energy concerns , ensuring the agency fulfills the mandate of the Dodd-Frank Act , and confronting the changes brought about by the influx of retail market participants . 5 This report will look at the CFTC ’ s enforcement program during FY 2021 and into the current fiscal year and look ahead to the new regulatory agenda forming under a brand new Commission and how it may inform enforcement priorities .

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