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House CFTC Reauthorization Bill Would Broaden Enforcement Reach

October 31, 2019, Bloomberg Law

Laura Brookover is quoted in Bloomberg Law regarding a House bill to reauthorize the Commodity Futures Trading Commission for the first time in more than a decade. The bill would give the agency stronger legal footing to pursue fraudulent overseas trading activities.

 

Ms. Brookover says that language would potentially give the agency broader authority over foreign conduct. The agency’s current test of bringing extraterritoriality requires the CFTC to prove foreign conduct caused foreseeable and substantial harm. “An ‘effect’ in the U.S. should be easier to prove than ‘harm’.”

 

If enacted, the CFTC reauthorization bill would “remove a significant legal headwind” to bringing such cases, Brookover said. The bill could even serve “as a kind of vindication or blessing by Congress of the Division’s strategy,” she added. Otherwise, the agency’s legal theory behind charging foreign corruption-related fraud or manipulation is likely to face significant pushback from defendants “on the ground that the CEA generally doesn’t apply to foreign conduct.”

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