CFTC Division of Enforcement Issues New Cooperation Advisory

On May 19, 2026, the Division of Enforcement (Division) of the Commodity Futures Trading Commission (CFTC) issued a new staff advisory setting out its revised policy on self-reporting and cooperation in enforcement matters before the Division. The advisory rescinds and supersedes all of the advisories and guidance that were previously issued by the Division with respect to self-reporting and cooperation and will be incorporated into the Division's Enforcement Manual. As firms and individuals often grapple with deciding whether to self-report potential violations of the Commodity Exchange Act and the CFTC's Regulations and how they actually benefit from cooperating with the Division, the advisory sets forth a more structured approach for awarding cooperation credit and offers a path toward declinations—a first for the Division.

The new advisory is thematically consistent with the Division's prior advisories and guidance relating to self-reporting and cooperation, as it continues to emphasize prompt self-reporting, full factual disclosure, meaningful assistance to staff, and full and credible remediation. However, these themes are set out in a more simplified format that is tied more directly to resolution outcomes. Moreover, the advisory is in line with DOJ's March 2026 Corporate Enforcement and Voluntary Self-Disclosure Policy encouraging parties to self-report early, fully cooperate, and remediate fully to obtain cooperation credit.

The most notable change is the provision of a path to declination. Absent aggravating circumstances, a respondent may be eligible for a declination if the respondent voluntarily self-reports promptly and in good faith, fully cooperates by providing all material non-privileged information to the Division, undertakes timely and appropriate remediation, and provides full restitution, disgorgement, or both (and allows for flexibility in payment). A report qualifies as a voluntary self-report only if it occurs before a known or reasonably anticipated imminent threat of disclosure through a whistleblower, the media, another channel, or before a known or reasonably anticipated imminent threat of an investigation by an exchange, self-regulatory authority, or state or federal authority. A voluntary self-report satisfying these requirements will still qualify as a voluntary self-report even if the CFTC already knew about the misconduct. In addition, the advisory requires a party seeking credit for a qualifying self-report to have timely satisfied any separate statutory or regulatory obligation to provide related information to the CFTC or one of its divisions. The fact that the self-report can be made to any division of the CFTC, and not limited to the Division, is contrary to earlier cases brought by the Division, such as Raizen Energia, where cooperation credit was not given because the self-report was made to one of the CFTC's operating divisions and not "double-reported" to the Division.

The advisory also allows for "near-misses" where a party acted in good faith by self-reporting, but the self-report did not qualify as a voluntary self-report, or where aggravating factors precluded eligibility for a declination. In that instance, a party can still obtain a penalty reduction of at least 50% with the provision of full cooperation and remediation, or at least 25% if aggravating factors are present. Even where no voluntary self-report was made and full cooperation was not found, a party may be eligible for no more than a 25% reduction to reflect a party's assistance. Aggravating circumstances that may, but do not necessarily, preclude eligibility for credit, include pervasive intentional or reckless misconduct by ownership or senior management, misconduct over an extended period, recidivism, and particularly egregious harm.

The advisory also includes a limited safe harbor for inaccuracies made in a self-report that had been made in good faith, as long as the party promptly supplements and corrects the information after discovering an inaccuracy.

While the advisory presents a more transparent pathway toward cooperation credit and declinations, the advisory is nevertheless subject to the same problem that has plagued prior guidance as it does not set forth how the underlying penalty amount is determined by the Division. Another common criticism of prior advisories is that the determination of what constitutes "cooperation" can be subjective. This advisory, however, includes detailed checklists for what would constitute full cooperation and full remediation, which may help to alleviate uncertainty due to that subjectivity. The expectation of full cooperation includes timely disclosing all relevant non-privileged information, identifying all individuals involved, making proactive disclosures to staff even when not prompted by staff, preserving and producing documents (including foreign documents), and facilitating interviews of relevant personnel. Full remediation looks to analyzing the root cause of the issue, enhancing compliance and ethics programs, imposing appropriate discipline, and implementing record-retention measures (including controls over personal devices and off-channel communications).

For those facing a possible inquiry by the Division, the advisory sends a clear message that parties should assess early on whether voluntary self-reporting is a possibility, preserve and develop the facts expeditiously, cooperate in a way that materially assists staff (and document those efforts), and implement full remediation. The policy encourages parties to report at the earliest possible opportunity, even before or during an internal investigation, and parties should not wait for a routine reporting date. The policy may create meaningful opportunities for favorable treatment by the Division, but it also increases the importance and value of early strategic decisions to voluntarily self-report.

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Elizabeth Davis is a partner in DWT's Washington, D.C. office. For any questions or more insights, please contact Elizabeth or another member of our financial services team and sign up for our alerts.