Law360, New York ( April 7, 2017, 3:50 PM EDT) -- As regulations have multiplied and Congress has conferred additional authority on the U.S. Commodity Futures Trading Commission, the power of the CFTC's Division of Enforcement (DOE) has grown significantly. For many years, CFTC enforcement focused on intent-based wrongdoing, such as fraud and trade practice violations. However, new authority to pursue disruptive trading practices, nonscienter-based fraud for swap dealers, reporting violations and that old favorite, failure to supervise, have empowered the DOE and enhanced its ability to influence policy as well as punish for violations of the Commodity Exchange Act, even when the violators lack wrongful intent. With these new powers comes a responsibility to act with restraint and sensitivity to the potential adverse impact that the DOE's conduct has on the market and market participants — a restraint that sometimes seems at odds with the hyperaggressiveness that the DOE has exhibited in recent years....
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