A Bridge Too Far: CFTC's 'Reckless' Manipulation Theory

Law360 (January 4, 2019, 5:20 PM EST) -- The U.S. Commodity Futures Trading Commission has, by regulation, reduced a long-standing mens rea standard in connection with proof of unlawful price manipulation allegedly accomplished by open market transactions. By reducing the standard from specific intent to recklessness generally, and without distinguishing and providing a separate specific intent standard for allegations based upon open market transactions, the CFTC is deviating impermissibly from clear congressional intent, as well as long-standing, well-founded policy to rely upon the specific intent standard to distinguish innocent market transactions from unlawful price manipulation.

Introduction

The U.S. Commodity Futures Trading Commission has taken a highly questionable view of...

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